GMC v Adeogba and GMC v Visvardis [2016] EWCA Civ 162

In what may come as good news for regulatory bodies, the Court of Appeal has overturned two High Court decisions allowing fresh hearings into fitness to practise concerns about two doctors. In both cases (factually unconnected), the Fitness to Practise Panel ('the Panel') of the Medical Practitioners Tribunal Service ('MPTS') allowed the hearing to take place in the absence of the registrant. In remitting both cases to the High Court, the Court of Appeal determined that the lower court had misapplied the established case law principles in R v Jones [2002] UKHL 5 which approved the guidance set out in R v Hayward, R v Jones, R v Purvis QB 862 [2001]. This case may serve as a salutary reminder to registrants who face disciplinary proceedings that there is 'no premium on non-co-operation' and if the risk that a Panel may only hear the one side of the story was a consideration to outweigh all others, cases would never be heard.

Dr A, Nigerian by birth, practised and resided in Germany and had obtained registration in the UK to work as a visiting plastic surgeon in a clinic in Liverpool. Following a number of complaints about surgical procedures he had carried out and hearings before the Interim Orders Panel ('IOP') which he attended, Dr A was suspended for a period of 18 months. Because of the interim suspension and the reduction of work in Germany, Dr A decided to return to Nigeria but he did not inform the GMC of this fact. He did not communicate a change to his registered address which remained in Germany, and did not provide any alternative means of contact within Nigeria.

Correspondence including the Notice of Hearing was sent to Dr A's registered address and was returned marked 'undelivered'. Correspondence was also sent to his known email address which Dr A had used in correspondence with the GMC previously, but Dr A did not respond to any form of communication. At the hearing in December 2013, the Panel decided to proceed in his absence, determining that he had ceased to engage with the GMC and that in all the circumstances it was in the public interest to proceed. Dr A was found to be impaired and was ultimately removed from the register. Dr A returned to Germany at the end of 2013 and was alerted to the Panel's decision by a former colleague. Fortuitously, this was just within the 28 day appeal period and Dr A lodged an appeal to the High Court on the basis that the Panel had been wrong to proceed in his absence.

Judge Wood in the High Court allowing the appeal, considered that the Panel had misinformed itself as to the issue of whether Dr A in fact knew the hearing was taking place. He found that the Panel had erred in finding that he had voluntarily absented himself and held that non-engagement should not of itself be taken to mean lack of interest or apathy. Dr A had conceded through his Counsel that he had adopted 'an ostrich-like attitude' and had simply declined to access his email and correspondence whilst living in Nigeria. In spite of this, Judge Wood considered that the GMC should have done more to ensure his attendance, such as contacting his former practice or colleagues or making enquiries with overseas registration authorities, as it was 'not beyond the realms of possibility' that he had returned to his country of origin. He considered that it was not the conduct of the registrant in dis-engaging in the process which should have been called into question, but the issue of whether a fair hearing would have been possible. Ultimately it was found that in this case, the risk of prejudice to the registrant in proceeding in his absence was so significant that it outweighed the public interest in expediency of proceedings.

Overturning this decision, the Court of Appeal found that the GMC was perfectly entitled to rely upon the contact information provided by Dr A, and that it had discharged its responsibility to communicate the Notice of Hearing at the address provided and was required to do no more; it was for the registered person to ensure that his address is kept up to date. The Court held that whilst attendance of the registered person is of prime importance, the system could not operate effectively or efficiently if there was any suggestion that a registered person must be allowed one or more adjournments where it was thought that they may not know of the date of the hearing, particularly where they have disengaged from the process or adopted an ostrich-like attitude. The Court of Appeal recognised the 'real significance' of the fact that the Panel did not have Dr A's input in relation to the facts, impairment and sanction, but noted that the Panel recognised this saying it would take all necessary steps to ensure the hearing was fair to all. The importance of the opportunity for the registrant to be heard, the Court of Appeal held, cannot override all other considerations as if it did, it would invite frustration of the regulatory process through non-engagement or non-attendance.

In the case of Dr V, the GMC was investigating allegations of dishonesty in respect of job applications which misrepresented his employment history and qualifications. In accordance with its process, the GMC invited Dr V to comment on draft allegations and evidence prior to the matter being considered by case examiners. Dr V provided a full written account, disputing the allegations and calling into question the evidence the GMC was seeking to rely on. The case examiners found there was a real prospect of a finding of impairment and the matter was duly referred to a Panel of the MPTS.

Upon notification of that decision, Dr V enquired as to how he could challenge that referral decision on the basis that the case examiners had not fully dealt with the points he raised. After correspondence in which Dr V continued to make it clear he was dissatisfied with the GMC's process, Dr V was invited to make an application to have the hearing cancelled under Rule 28 of the GMC's Rules, which he did around 10 days prior to the hearing. In that application he indicated that he was unrepresented and did not have time to engage legal representation before the hearing. The cancellation application was refused but the decision was not communicated to Dr V until the morning of the first day of the hearing.

In deciding whether to proceed in his absence, the Panel found that notwithstanding the late notice of the refusal of the cancellation application, Dr V had not sought to chase decision, did not indicate at any time his intention or wish to attend the hearing and that an adjournment would not be likely to secure his attendance at a later stage. In all the circumstances the Panel considered that Dr V had voluntarily waived his right to attend the hearing and the matter should proceed.

His Honour Judge Bird in the High Court found that the Panel had erred in its decision, and that rather than suggest he did not wish to attend, Dr V had said in his cancellation application that there was insufficient time for him to secure representation before the hearing. A registrant does not need to expressly state a desire to attend his own hearing he said, as the right to attend exists independently of any such assertion. Further, the Panel's weighing of the competing factors in the exercise of its discretion was 'clearly flawed' as the Panel did not refer in its decision to the need to consider the extent of the disadvantages to the doctor if he is not able to put forward his account, and the risk of an improper conclusion being reached in his absence.

The Court of Appeal held that whether or not Dr V had intended to attend, he had done nothing to comply with any case management directions, and rather had embarked upon a 'collateral attack of the process' which was a deliberate attempt to disrupt the fitness to practise procedure. Any argument Dr V had on the vires of the proceedings should be dealt with through the judicial review process and any attempt to do it through the case management process was an attempt at deliberate disruption. As to any concern that Dr V's account would not be considered, the Court of Appeal noted that the Panel had the benefit of a full written response submitted for consideration by the case examiners at the earlier stage of the process, and noted 'if such a consideration was to prevail above all others, cases would never be heard'.

These cases do not represent a departure from established case law principles but rather confirm that whilst the discretion to proceed in the absence of a registrant should only be exercised rarely and with great caution, a panel should not allow the regulatory process to be frustrated by wilful ignorance or a deliberate attempt to evade due enquiry. A Registrant has the right to be present at a hearing into his fitness to practise, but this right is not absolute and must be weighed against the duty of regulatory bodies to conduct a robust and timely investigatory process in the public interest.