Nicholas-Pillai v GMC  EWHC 305 (Admin)
Judgment date: 22 January 2015
In 2008 and 2009 concerns surrounding the appellant’s practice were referred to the GMC and he was invited to undergo a performance assessment. The appellant agreed to this course of action and was subsequently graded as “unacceptable” in three areas: the assessment of patients’ condition, providing or arranging treatment, and record keeping. He was found to have performed below the minimum acceptable level in simulated surgery and in the objective structured clinical examination (OSCE). His clinical performance was found to be “unacceptable” and his performance was found to be “deficient”.
Between 14 and 25 January 2013 a hearing took place before the GMC’s Fitness to Practise Panel (FPP). It was alleged that the appellant’s fitness to practise was impaired by reason of deficient professional performance on the basis of the performance assessment. The appellant was represented by counsel for part of the hearing and represented himself for the remainder. The FPP heard live evidence from the four assessors who had conducted the assessment in 2010 as well as witnesses called by the appellant.
The FPP concluded that the appellant’s fitness to practice was impaired and the only appropriate sanction was erasure from the register. On appeal to the Administrative Court the appellant submitted that, among other things, his counsel was so incompetent that the hearing was unjust.
A strict test
In considering the appeal, Laing J echoed the warning sounded by the court inR (B) v Hampshire County Council  EWHC 3193 (Admin) at -: a ground of appeal relying on the incompetence of counsel involved “an undesirable form of satellite litigation which was to be discouraged”.
It was for this reason that the test was a strict one: “was the incompetence of such degree that no reasonable advocate would have acted in that way and did any such incompetence cause the hearing to be unjust?” (R (Aston) v Nursing and Midwifery Council  EWHC 2368 (Admin) at -.
In this context Article 6 of the European Convention on Human Rights was of relevance. Laing J cited the Court of Appeal decision in Khan v HMRC  EWCA Civ 89, in which Carnwath LJ had made reference (at ) to the decision of the European Court of Human Rights in Kamasinski v Austria A/76 (1991) 13 EHRR 36:
“...‘a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes.’ It follows from the independence of the legal profession of the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed.”
“Completely out of his depth…”
Laing LJ agreed with the appellant’s submission that the transcript of the FPP hearing showed that his counsel was “completely out of his depth, and should never have agreed to act for the appellant in this case” .
The principal criticism the appellant levelled at his counsel was that he had been absent for three days of the hearing. Laing J found that this conduct was Wednesbury unreasonable. However, The FPP had taken great pains to ensure that the hearing was fair and given the appellant the opportunity to have an adjournment so as to instruct fresh a representative. He had refused. In any event, the appellant had been in a good position to cross-examine the two GP assessors and to make submissions on the medical aspects of the case given his familiarity with the assessment.
The appellant also criticised his counsel’s lack of preparation for the hearing. While there was some justification in this the appellant had been fully able to put his case. Indeed, it was that fact that had enabled the FPP to come to clear views about his lack of insight. It was not unjust if the consequence of poor representation by an advocate was that the FPP were able fully to see, unmediated by counsel, the real attitude of the doctor to the criticisms which he faced.
During the hearing the FPP chair had announced that he knew the lead assessor when, eight years previously, they had worked in the same hospital. The appellant’s counsel had audibly taken instructions on this issue in the presence of the FPP. He should not have done this; however, there was no proper basis on which counsel could have applied to the chair for him to recuse himself. The connection between the chair and the lead assessor was tenuous and came nowhere near satisfying the test in Porter v Magill  UKHL 67.
The appellant also complained about the way in which counsel had cross-examined the lead assessor, the way in which counsel had conducted examination in chief, and his misjudged submissions about sanction. Laing J accepted that, overall, the appellant had been poorly served by his counsel and that in several respects his conduct of the hearing was Wednesbury unreasonable.
Nevertheless, the judge did not consider that the appellant suffered an injustice as a result, or that the decision of the panel was either wrong, or unjust in consequence. The appellant was an intelligent, well-educated professional and the FPP had been conspicuously fair to him throughout the hearing. The test in Aston was not satisfied and the appeal was dismissed.
This decision provides a helpful overview of the law on incompetent representation and emphasises the high threshold necessary for such a ground of appeal to succeed. It also highlights the need for fitness to practise panels to be alive to the issue and take any necessary steps to ensure that a hearing is fair.