The case of the consultant paediatrician prominently involved in the Baby P case, has drawn attention to issues concerning the GMC voluntary erasure (VE) processes, particularly where fitness to practise (FTP) proceedings have commenced.
Dr Al-Zayyat faced FTP proceedings concerning her conduct in the care of Baby P, and applied for VE on the grounds of ill health. That application was rejected and an application for judicial review of that decision was made. She was successful in obtaining a new opportunity to apply to the GMC for VE. The subsequent application for VE was heard in February 2011 and the panel determined to grant Dr Al-Zayyat’s application. It was considered that as Dr Al-Zayyat would be unable to properly instruct counsel or to attend the hearing to give evidence there could not be a fair hearing. The panel found the case exceptional and, having weighed the interests of the doctor with the public interest, acceded to the request for VE.
The GMC’s Guidance on making decisions on voluntary erasure applications, requires that decision-makers should be satisfied that VE is “right in all the circumstances” which include the public interest, the private interest of the complainant and the private interest of the doctor. It also notes the need for serious FTP allegations to be examined in public to maintain public confidence in the profession and the GMC.
Lord Bingham's observations in R v Jones, highlight that the court’s discretion to proceed in the absence of a defendant is “to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial…”
It is clear that the provision of VE requires a balancing act of the interests of all those involved, as highlighted in high profile cases such as this. The February 2011 panel determination addressed these competing interests.
This determination noted that the public interest would be safeguarded in granting VE, both because Dr Al-Zayyat would no longer be able to practise and, if there was an application for restoration to the register, previous events would be taken into account and where appropriate the matter could be referred to an FTP panel at that stage. The determination also made a distinction between the public interest, and public curiosity which was not a relevant matter.
It was necessary to consider whether the doctor’s interest would be compromised by the denial or granting of VE. The judicial review had concluded that there was no support for the GMC panel’s conclusion that she was not “genuinely and/or involuntarily incapacitated" from taking part in the disciplinary hearing and it was for this reason that the matter was remitted back to a new panel. One issue to be considered is that, if the doctor does later recover and wish to clear their name, evidence may no longer be available.
For both these reasons, consideration should be given in appropriate cases to gathering evidence about the FTP allegations before granting VE.