General Medical Council v Hayat [2018] EWCA Civ 2796

“15. The Tribunal notes that there is a burden on medical practitioners subject to a regulatory regime to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. 16. It follows that where a medical practitioner seeks an adjournment of a hearing, on the basis that they are not fit enough to attend, then it is their responsibility to ensure sufficient evidence is presented to the Tribunal to establish that this is the case. The Tribunal is satisfied that Dr Hayat is aware of that responsibility, as a result of various communications with him. 17. The Tribunal considered the email sent on Dr Hayat’s behalf this morning at 08.55am and subsequent Statement of Fitness for Work for Social Security of Statutory Sick Pay sent during the course of the afternoon. This document indicates that Dr Hayat is not fit for work because of the following conditions: This document indicates that Dr Hayat is not fit for work and does not suggest that he is not fit to attend and fully participate in these proceedings. It essentially reiterates the medical information from during the hospital admission. 18. The Tribunal considered that it can conclude on the basis of present information that Dr Hayat has voluntarily absented himself from this hearing. The Tribunal has therefore determined to accede to your application today to proceed in Dr Hayat’s absence. 19. The Tribunal is aware of its duty to ensure that proceedings conducted in the absence of the doctor are fair and to take reasonable steps to expose any weaknesses in the GMC case.”

“48. The Tribunal relied upon the evidence from Drs Bright and Cunnington that the Appellant was fit to be discharged and fit to attend the hearing. Although they noted "pain" and "discomfort" in the right arm, following the angiogram, there was no mention of infection, and having ruled out vascular damage, they did not address it further in their letters. Unsurprisingly, the focus of their assessment of his fitness to attend the hearing was on his heart complaints. However, that was a medical assessment as at Friday 4 November 2016, not 7 November 2016. 49. The Appellant's case was that, following his discharge, over the weekend of 5/6 November, the after-effects of the angiogram became sufficiently severe for him to visit his GP on the morning of 7 November. His GP examined him and stated on the form that he had "developed post angiography right arm bruising +/- infection" for which he needed antibiotics. He also declared him unfit for work. I am not clear whether or not the visit to Whipps Cross Hospital over the weekend was also prompted by the after-effects of the angiogram. 50. It would have assisted the Appellant's case if he (or his friend, if he was not well enough) had provided the Tribunal with more details of his symptoms and also a copy of his "Angiography Discharge Information" sheet which he was given at MRI. This was only produced at the appeal hearing. It listed possible after-effects, advising patients to attend their GP or local hospital. It recommended one week off work following an angiogram. However, in my view, the information in the GP's form was sufficient to require the Tribunal to conduct further investigations into the Appellant's condition, if it was not prepared to adjourn the hearing on the basis of the GP's report alone. 51. The GMC's scepticism about the genuineness of the Appellant's ill-health could not, in my view, justify the Tribunal in disregarding the evidence of a medical professional, and in fairness, the Tribunal did not suggest that it could. 52. The Tribunal had before it unchallenged evidence of a medical condition, as at 7 November 2016, of sufficient severity for a doctor to certify that he was unfit to work, based on a medical examination that very morning. The GP's evidence raised a new issue which had not been fully addressed in the evidence of Drs Bright and Cunnington because it postdated their evidence. 53. Applying the authorities, such evidence ought generally to result in an adjournment, to give effect to the common law duty of fairness, and to avoid a violation of Article 6, by depriving the registrant of the opportunity to present his defence to serious charges which threatened his professional career. 54. The Tribunal was not entitled to disregard the GP's certificate that the Appellant was unfit for work merely because it did not also say that he was unfit to attend the hearing. Whilst there may be occasions where a registrant is fit enough to attend a court hearing, even though he is certified unfit for work, that will depend upon an evaluation of the individual circumstances of the case. In my judgment, the Tribunal ought to have given careful consideration to the question whether and to what extent the Appellant's condition would affect his ability to take part in the proceedings. The fact that his GP had certified him as unfit for work should have prompted them to consider whether that could also mean that he was not well enough to conduct a lengthy disciplinary hearing, which would entail spending a week away from his London home, in Manchester. The Tribunal was aware from the postponement application that there was a real risk that he would not be able to afford to instruct a representative for the full hearing (as opposed to the initial adjournment application), in which case he would have to represent himself, making submissions and cross-examining witnesses. In any event, he would have to give oral evidence and be cross-examined. In a case where there were allegations of dishonesty, cross-examination by the GMC was likely to be vigorous. Conducting the hearing would be demanding and he would need to be well enough to do himself justice. In my view, the Tribunal did not give any or any proper consideration to these matters. 55. The Appellant was deprived of the opportunity to give his evidence, and to challenge the evidence of the regulator's witnesses at the fact-finding stage. In this appeal, the factfinding stage was of critical importance as the Tribunal had to determine whether or not the Appellant had made false claims on the policy, and whether he had acted dishonestly. If the Tribunal found against him on those issues, he would be at risk of findings of misconduct and impairment, and order of erasure. 56. For these reasons, I conclude that the Appellant did not receive a fair hearing. The decision of the Tribunal's decision was unjust because of a serious procedural irregularity, and therefore the appeal ought to be allowed. 57. As there will have to be a re-hearing before a fresh panel, it would not be right for me to go on to express my views on Grounds 2 to 4, as that might unfairly influence the new panel in its deliberations.”

“1. misdirected herself that medical evidence suggesting that the registrant was unfit to work ‘ought generally’ to result in the adjournment of their disciplinary hearing even when that evidence was unparticularised, unreasoned and disputed; 2. failed to afford appropriate respect to the judgment of the MPT [the Tribunal] on an issue which the MPT was better placed to judge – i.e. whether the medical conditions identified in the sick note suggested that Dr Hayat would be unfit to participate in the hearing; 3. failed to recognise that the question of whether to adjourn for further investigations into Dr Hayat’s health was a case management decision which should only have been interfered with by an appellate court if it were ‘plainly wrong’; and 4. failed to ask whether the alleged procedural irregularity (in failing to conduct further investigations) caused any injustice. There was no evidence that if the MPT had conducted further enquiries of the author of the sick note it would have discovered anything which would have prevented the hearing from continuing in Dr Hayat’s absence.”

“Conditions for second appeal [are] satisfied as it is important to have clarity as to the manner in which this Tribunal should act if an application for adjournment on the grounds of ill health is made and there is conflicting evidence. The standard review of its decision is also a legal issue worthy of consideration of this court.”

“…save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with a hearing where there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of disciplinary process.”

“17. In my judgment, the principles set out in Hayward, as qualified and explained by Lord Bingham in Jones, provide a useful starting point for any direction that a legal assessor provides and any decision that a Panel makes under Rule 31 of the 2004 Rules. Having said that, however, it is important to bear in mind that there is a difference between continuing a criminal trial in the absence of the defendant and the decision under Rule 31 to continue a disciplinary hearing. This latter decision must also be guided by the context provided by the main statutory objective of the GMC, namely, the protection, promotion and maintenance of the health and safety of the public as set out in s. 1(1A) of the 1983 Act. In that regard, the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance. 18. It goes without saying that fairness fully encompasses fairness to the affected medical practitioner (a feature of prime importance) but it also involves fairness to the GMC (described in this context as the prosecution in Hayward at [22(5)]). In that regard, it is important that the analogy between criminal prosecution and regulatory proceedings is not taken too far. Steps can be taken to enforce attendance by a defendant; he can be arrested and brought to court. No such remedy is available to a regulator. 19. There are other differences too. First, the GMC represent the public interest in relation to standards of healthcare. It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. The consequential cost and delay to other cases is real. Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed. 20. Second, there is a burden on medical practitioners, as there is with all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”

“59. Further, in my judgment, to suggest that the GMC should have started to make enquiries of the German authorities or, indeed, the Nigerian authorities (on the basis that this was where he came from) is to put a burden on the GMC which is far beyond that which is appropriate. Their responsibility is very simple. It is to communicate with the practitioner at the address he has provided; neither more nor less. It is the practitioner's obligation to ensure that the address is up to date. In addition, for my part, I am surprised that Dr Adeogba was not very keen to ensure that he kept in touch with the GMC: he was back in Nigeria, unable to earn a living as a doctor; one would have thought that he would be very keen to find out whether and, if so, when he could return to his work. All this is in addition to the point that there is no evidence that communicating with the German or Nigerian authorities would have had the slightest effect. … 61. Third, the judge appears to have put emphasis on the fact that this was the first hearing and that an adjournment was unlikely to be highly disruptive or inconvenient to attending witnesses. To suggest that the practitioner must be allowed one (or perhaps more than one) adjournment is to fly in the face of the efficient despatch of the regulatory regime. In addition, an adjournment was highly disruptive: the members of the Panel, the legal assessor, the staff and the accommodation had been set up. There is no suggestion that there was any back up work (which in any event would have been inconvenient to others) and 20 days' time would have been lost. Even if witnesses were not attending, it is inevitable that they will have been alerted to the date and, until they were stood down, will have suffered all the well-known anxiety associated with any forthcoming trial. Organising another hearing would have been both disruptive and inconvenient. No regulatory system can operate on the basis that failure to attend should lead to an adjournment on the basis that the practitioner might not know of the date of the hearing (rather than having disengaged from the process or even adopted an 'ostrich like attitude'): any culture of adjournment is to be deprecated. … 63. The high-water mark of the criticism that can be made of the decision of the Panel is the reference to voluntary waiver of his right to attend and be represented on the basis that such represents a conscious decision. Bearing in mind the professional obligation to maintain the register (and thus the means of contact) and based on the evidence before the Panel, it was legitimate to conclude that, at the very least, the practitioner had deliberately chosen not to engage with his regulator. In my judgment, in the context of this type of case (whatever the position might be in criminal proceedings), that is sufficient. If it was otherwise, the system simply could not operate efficiently or effectively and although attendance by the practitioner is of prime importance, it cannot be determinative.”

“36. Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5)? In my judgment he cannot. The Appellant was evidently able to think about the case on 24 May 2011 (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted): if he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the Registrar). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.”

“25. His second objection is that Morgan J should have adjourned the hearing on 10 March because Mr Brent was unwell and unable to attend. Whether to adjourn a hearing is a matter of discretion for the first-instance judge. This court will only interfere with a judge's exercise of discretion if the judge has taken into account irrelevant matters, ignored relevant matters or made a mistake of principle. Judges are often faced with late applications for adjournment by litigants in person on medical grounds. An adjournment is not simply there for the asking. While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing.”

“Nothing that I say in this judgment should be interpreted as casting doubt on the guidance given in the Levy case. Generally, the court should adopt a rigorous approach to scrutinising the evidence adduced in support of an application for an adjournment on the grounds that a party or witness is unfit on medical grounds to attend the trial.”

“The fact that a person is certified on medical grounds is not fit to attend work does not automatically entail that that person is not fit to attend a Tribunal hearing, though very often that will also be the advice of the medical practitioner.”

“(3) The appeal court will allow an appeal where the decision of the lower court was— (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

“Although the language in these two cases is entirely different, the foundation of the decisions is both consistent and analogous. The conclusions which I derive from the authorities are that: (a) the overriding objective requires cases to be dealt with justly. CPR 1.1(2)(d) demands that the Court deals with cases 'expeditiously and fairly'. Fairness requires the position of both sides to be considered and this is in accordance with Article 6 ECHR. (b) fairness can only be determined by taking all relevant matters into account (and excluding irrelevant matters). (c) it may be, in any one scenario, that a number of fair outcomes are possible. Therefore a balancing exercise has to be conducted in each case. It is only when the decision of the first instance judge is plainly wrong that the Court of Appeal will interfere with that decision. (d) unless the Appeal Court can identify that the judge has taken into account immaterial factors, omitted to take into account material factors, erred in principle or come to a decision that was impermissible (Aldi Stores Limited v WSP Group Plc [2007[ EWCA Civ 1260. [2008] 1 WLR 748, paragraph 16) the decision at First Instance must prevail.”