Hayat v General Medical Council [2017] EWHC 1899 (Admin)

[2017] EWHC 1899 (Admin)Case No CO/1276/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 July 2017
Before
MRS JUSTICE LANG DBE
Between
IJAZ HAYATAppellantGENERAL MEDICAL COUNCILRespondent
Al Mustakim (instructed under the Direct Access Scheme) for AppellantRory Dunlop (instructed by the General Medical Council) for RespondentHearing Hearing date: 27 June 2017
Judgment Approved
[1]The Appellant appealed pursuant to section 40 of the Medical Act 1983 (“MA 1983”) against the decision of a panel of the Medical Practitioners Tribunal (“the Tribunal”), dated 15 February 2017, which found that his fitness to practise was impaired and imposed the sanction of erasure from the register.

The allegations

[2]The Appellant qualified as a doctor in Pakistan in 1986. He moved to the UK in 1989, and qualified as a general practitioner in 2002. He was registered with the General Medical Council (“the GMC”).[3]The allegations arose out of a claim which he made on 18 October 2012 on a critical illness insurance policy with Friends Life, stating that he had suffered a heart attack whilst in Pakistan on 8 September 2012. In support of his claim, he submitted medical reports from the Faisalabad Institute where he claimed to have been admitted for treatment. Friends Life investigated the claim and concluded it was false. Friends Life referred the matter to the GMC. At the Tribunal hearing, his actions were found to be dishonest and misleading. The Tribunal found that he had committed misconduct, and that his fitness to practise was impaired. The sanction imposed was erasure from the register.[4]The allegations which were found proved were as follows: “1. From 1 August 2010 until 12 August 2013 you held Life and Critical Illness Cover (‘Illness Cover’) with BUPA Health Assurance now known as Friends Life Services Limited (‘Friends Life’). 2. In June 2010 you made an on-line application for Illness Cover in which you failed to disclose your family history of medical conditions in that you: a: falsely claimed you were unable to answer this section due to being adopted or similar circumstances which was not true b: did not amend the proposal summary to correct your disclosure. 3. On 18 October 2012, you submitted an Illness Cover claim form to Friends Life in which you:a. falsely claimed that: i. you had suffered a heart attack iii. you were not aware of any family history which may be linked to your condition 5. On or before 7 December 2012 you: a. prepared a draft GP medical report in which you stated you had been admitted to FIC on 8 November 2012;b. submitted the forged discharge letter from FIC to your GP 6. On 12 December 2012 you did not amend the 8 November 2012 date when you reviewed the signed GP medical report prior to it being submitted to Friends Life. 7. Between 8 and 15 April 2013 you made arrangements which resulted in forged documents which you knew to be false being submitted to Friends Life in support of your Illness Cover claim comprising of: a: a fax purporting to be from Dr B at FIC which wrongly claimed Dr A had retired from FIC b: a Medical Attendants Report purporting to be from Dr B stating you had developed chest pain and been admitted to FIC on 8 November 2012 c: an ECG dated 8 November 2012 d: two blood test results dated 8 and 9 November 2012, respectively 9. On 23 June 2013 you falsely claimed to Mr C, an investigator from Friends Life that various photographs proved you were a patient at FIC in September 2012, when you knew: a: you had not been treated at FIC in September 2012 b: the photographs had not been taken at that time 10. On 25 September 2013 and 23 April 2014 during police interviews you falsely claimed a: that you told Mr C that the photographs you showed him were taken in February 2013 b: Mr C had not shown you copies of the endorsed letters from doctors at FIC … d: that you purchased a Sony digital camera on 11 September 2012 in Islamabad until you were challenged about the date e. the results of an angiogram you had on 1 October 2013 confirmed you had a heart attack, until you were challenged about the report findings 11. Between 17 October 2012 and 24 April 2014 you falsely claimed that you had been admitted and treated at FIC during September 2012 13. Your actions as set out at paragraphs 2-5, and 7-12 above were: a. dishonest; b. misleading. And that by reason of the matters set out above, your fitness to practise is impaired because of your misconduct.” a: falsely claimed you were unable to answer this section due to being adopted or similar circumstances which was not true b: did not amend the proposal summary to correct your disclosure. a. falsely claimed that: i. you had suffered a heart attack iii. you were not aware of any family history which may be linked to your condition a. prepared a draft GP medical report in which you stated you had been admitted to FIC on 8 November 2012; b. submitted the forged discharge letter from FIC to your GP a: a fax purporting to be from Dr B at FIC which wrongly claimed Dr A had retired from FIC b: a Medical Attendants Report purporting to be from Dr B stating you had developed chest pain and been admitted to FIC on 8 November 2012 c: an ECG dated 8 November 2012 d: two blood test results dated 8 and 9 November 2012, respectively a: you had not been treated at FIC in September 2012 b: the photographs had not been taken at that time a: that you told Mr C that the photographs you showed him were taken in February 2013 b: Mr C had not shown you copies of the endorsed letters from doctors at FIC … d: that you purchased a Sony digital camera on 11 September 2012 in Islamabad until you were challenged about the date e. the results of an angiogram you had on 1 October 2013 confirmed you had a heart attack, until you were challenged about the report findings a. dishonest; b. misleading.

Grounds of appeal

[5]The Appellant’s grounds of appeal were diffuse and they were expressed slightly differently in the documents submitted (the notice of appeal, skeleton argument and the written submissions relied upon at the hearing). I have summarised them below, as best I can: i) Ground 1. It was procedurally unfair to proceed with the hearing in the Appellant’s absence, after refusing his applications for an adjournment. ii) Ground 2. The Tribunal conducted the proceedings in an unfair manner, relying upon inadequate and insufficient evidence, including hearsay evidence which the Appellant did not have an opportunity to challenge, in part because of the late service of the allegations against him. iii) Ground 3. The Tribunal was wrong to find that the Appellant was dishonest, on the evidence before it. iv) Ground 4. Even on the Tribunal’s adverse findings of fact, the Appellant’s actions were not serious enough to amount to misconduct, and did not justify a finding that his fitness to practise was impaired. v) The sanction imposed was disproportionate and failed to give due regard to his good character.[6]In response, the Respondent submitted that the Appellant chose to absent himself from the hearing and failed to provide medical evidence that he was not fit to attend. As a result, his complaint that it was unfair for the proceedings to continue in his absence was without merit. The Tribunal made unimpeachable factual findings based in part on live evidence. Given the Appellant’s repeated dishonesty, the Tribunal was entitled to find that the Appellant’s fitness to practice was impaired and that erasure was the appropriate sanction.

Appellate jurisdiction

[7]The Appellant has a right of appeal, pursuant to section 40 MA 1983. Subsection (7) sets out the powers of the High Court on appeal. The appeal is governed by CPR Part 52, as amended. Rule 52.21(3) provides:
“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.” (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
[8]Practice Direction 52D, paragraph 19.1(2), provides that the appeal will be by way of re-hearing. However, “it is a re-hearing without hearing again the evidence”, as Foskett J. explained in Fish v General Medical Council [2012] EWHC 1269 (Admin), at [28].[9]The approach to be taken by an appellate court to professional regulatory appeals was considered by the Court of Appeal and Privy Council in Meadow v General Medical Council [2007] QB 462, per Auld LJ at [197] and Raschid v General Medical Council [2007] 1 WLR 1460, per Laws LJ at [17] – [21].[10]Article 6(1) ECHR was engaged in these proceedings because the Appellant was erased from the register and the right to continue in professional practice is a “civil right”: Alfred and Le Compte v Belgium (1982) 4 EHRR 1. It includes the right to “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Ground 1: refusal to adjourn/proceeding in the Appellant’s absence

Facts

[11]Friends Life referred the allegation of fraud to the GMC and the Appellant was given notice of the allegations against him in February 2014. He denied them and provided a witness statement dated 21 February 2014. The Appellant was notified of the Case Examiner’s decision to refer the allegations to the Tribunal in a detailed letter dated 6 June 2016. The specific allegations which had been referred to the Tribunal were set out in the letter.[12]Shortly afterwards, in June 2016, the GMC listed the Tribunal hearing date, in consultation with the Appellant, to commence on 31 October 2016, with a time estimate of 15 days.[13]In accordance with rule 17 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (“the 2004 Rules”), formal notice of the allegations and the date of hearing were sent to the Appellant in late September, at least 28 days before the hearing commenced.[14]On 3 October 2016 the Appellant applied to postpone the listed hearing on the basis that he had insufficient time to prepare. Solicitors had been instructed since 28 July 2016 and wished to make further enquiries to prepare the case. Additionally, counsel who was instructed on 30 September 2016 was not available until 9 November 2016. The application was refused.[15]On 27 October 2016 the Appellant applied to postpone the listed hearing saying he did not have sufficient funds to pay for his lawyers and he was awaiting the outcome of an application for a loan which had been agreed in principle. This application was refused.[16]The Appellant provided a witness statement dated 19 October 2016, supplementing his 2014 statement.[17]When the hearing began on Monday 31 October 2016, the Appellant was represented by counsel, who applied for an adjournment for one to two months. He provided the Tribunal with a handwritten letter dated 30 October 2016 from an Accident and Emergency Department doctor at King George Hospital, Barking stating that the Appellant needs to be “off work for seven days” because of back pain for which he required analgesia and diazepam. He was due to have an MRI scan. Counsel also submitted that the Appellant and his lawyers were not sufficiently prepared for the hearing and wanted to gather further evidence.[18]The application was opposed by the GMC on the grounds that the Appellant had had sufficient time to prepare his case, and it was sceptical about the medical reasons for the application to adjourn.[19]The Tribunal refused the application to adjourn on the grounds that the medical evidence did not contain any detail as to the potential impact of the pain and discomfort or medication could have on the Appellant. It did not state he was unfit to instruct a representative or to participate in the hearing. Having regard to the two previous applications to postpone, the Tribunal was satisfied that the Appellant had had sufficient time and opportunity to prepare for the hearing. The Tribunal considered the impact on the public interest of adjourning a 15 days hearing, and the inconvenience that would cause to witnesses. It was satisfied that it was in the interests of justice and in the public interest for the hearing to proceed.[20]The Tribunal then adjourned for lunch, and it was scheduled to re-convene at 13.35 hours. The Appellant was present but when a member of the Tribunal staff went to fetch him, he was sitting in a chair, and could not be roused. He appeared to be unconscious. Emergency services were called. A paramedic attempted to pass a tube through the Appellant’s nose and the Appellant became alert and responded. The Appellant informed the paramedic that he was suffering chest pains. The Appellant was taken to Manchester Royal Infirmary (“MRI”). The hearing was adjourned because of the Appellant’s ill-health.[21]On Tuesday 1 November 2016 Ms Jabeen Mirza, GMC solicitor, telephoned MRI and spoke to the Appellant and Dr Bright, the Appellant’s treating doctor. The Appellant gave his verbal consent to the GMC for Dr Bright to pass on the Appellant’s medical information. According to Ms Mirza’s telephone attendance note, Dr Bright asked Ms Mirza whether or not the Appellant had lost conscious and Ms Mirza said he had been unresponsive but became alert when the paramedic tried to pass a tube through his nose. She said “I understood that the paramedic was not of the view that Dr Hayat had been unconscious but I was unable to provide any further information about this. Dr Bright confirmed that this was his understanding from a medical review also.”[22]According to his letter dated 1 November 2016, Dr Bright’s diagnosis was that the Appellant had suffered an episode of chest pain, which was currently being treated as angina. He took three puffs of GTN Glyceral trinitrate (GTN) spray is prescribed for chest pain associated with angina, to provide pain relief. , and “experienced an episode period of unawareness and altered consciousness level for approximately thirty minutes. He has no recollection of the events and I believe there was no collapse or formal loss of blood pressure or cardiac output during this time”. Investigations had excluded an acute coronary syndrome and there was no evidence of myocardial necrosis. He had been admitted for cardiac monitoring and an echocardiogram overnight. As long as these investigations showed normal results, he would be fit for discharge the next day. He would require follow-up with his cardiologist at home to ensure that no further investigations were required regarding angina.[23]Dr Bright concluded:
“With regards to fitness to move towards tribunal hearing I anticipate Dr Hayat will be fit for discharge tomorrow morning after 9.00 a.m. I will attempt to obtain the results of his angiography and if this confirms he only has minor plaque disease which does not require any significant intervention at that time I believe Dr Hayat would be fit to undergo the tribunal hearing. However if his angiography did confirm a significant stenosis it would be more advisable that he undergoes further local treatment prior to his tribunal hearing. However I suspect after review of his angiogram results from UCL in 2013 he will be fit to undergo tribunal hearing.”
[24]In a telephone call to Ms Mirza on Thursday 3 November 2016, Dr Bright informed the GMC that the Appellant’s angiogram had been normal and he anticipated that he would be discharged that afternoon. In a later call on the same day Dr Bright informed the GMC that he had seen the Appellant with his lawyer, and the Appellant had indicated that he did not want Dr Bright to be involved in any further interactions with the GMC.[25]In a letter dated Friday 4 November 2016 sent by email, Ms Mirza asked the Appellant for his consent to obtain updated medical information and warned him that the hearing might proceed in his absence if it was not provided.[26]On 4 November 2016, Dr Bright sent a letter by email to Ms Mirza saying that he had again gained verbal consent from the Appellant to inform her of his progress. He said:
“Mr Hayat underwent angiography which has shown no evidence of significant coronary artery disease. His 24-hour tape has shown evidence of nocturnal pauses but this may be related to beta-blocker therapy but he will require follow-up in future by the local Cardiology services regarding his low nocturnal heart rate. Unfortunately there is a complication of pain associated with his arterial puncture site secondary to his angiography and as of yesterday he was awaiting for a vascular ultrasound of his side. Dr Hayat has asked me not to be involved in his case either for direct clinical care or as an information conduit between the GMC and his medical information at the Manchester Royal Infirmary. Dr Hayat is under the care of the Cardiology services Dr. Colin Cunnington. At present as I am no longer his caregiver I cannot advise you regarding his fitness to continue within his tribunal hearing.”
[27]The Appellant was discharged from hospital on 4 November 2016 and travelled home from Manchester to London. On the same day as his discharge, on 4 November 2016, the GMC applied for the proceedings to continue in the Appellant’s absence, referring to the medical information received and in addition, a letter from the Appellant to BUPA dated 6 July 2010, in which he admitted that he had feigned chest pains during a court hearing against his wife concerning access to his children, as an act of desperation, to gain sympathy from his wife. No representative was present on behalf of the Appellant at the hearing on this day.[28]The Tribunal reviewed the information from the doctors and the GMC, and refused the GMC’s application, saying:
“18. The Tribunal has considered the medical evidence which Dr Bright has provided in relation to Dr Hayat’s health status. It notes that in the most recent letter dated 4 November 2016 it states: “Unfortunately there is a complication of pain associated with his arterial puncture site secondary to his angiography and as of yesterday he was awaiting for a vascular ultrasound of his side.” 19. The Tribunal accepts that, save in exceptional cases where the public interest points strongly to the contrary, it would be wrong to proceed when there is unchallenged medical evidence that the doctor is not fit to attend and take a full part in the proceedings. ….. 24. The Tribunal considered that it cannot conclude on the basis of present information that Dr Hayat had voluntarily absented himself from this hearing. The Tribunal has therefore determined not to accede to your application today to proceed in Dr Hayat’s absence.” “Unfortunately there is a complication of pain associated with his arterial puncture site secondary to his angiography and as of yesterday he was awaiting for a vascular ultrasound of his side.”
[29]On Saturday 5 November 2016, a friend of the Appellant (Mr Javaid) sent an email attaching a letter and the Appellant’s written consents to the disclosure of his medical records. The Appellant denied that he had withdrawn consent for Dr Bright to disclose medical information. He said that he had always been willing to provide written consent, but had not been asked to do so previously.[30]On Sunday 6 November 2016, Ms Mirza sent an email to the Appellant asking him to update the Tribunal as to his health if he was unable to attend the hearing the next day. She informed him that the Tribunal had refused the GMC’s application to proceed in his absence on 4 November 2016, but warned him that the GMC would consider renewing the application on 7 November 2016.[31]In response to a request for information from Ms Mirza, Dr Bright sent a letter by email on Monday 7 November 2016 stating:
“Thank you for the written permission to disclose the medical information regarding Dr. Ijaz Hayat; dob: 13/09/1960. I can confirm he was discharged from the Manchester Royal Infirmary on 04/11/16. I can confirm that he was admitted after an episode of chest pain and altered conscious level on 31/10/16. He has been under the care of Dr. Colin Cunnington in the Cardiology ward and has undergone angiography which was essentially normal. His 24 hour tape showed no significant pauses but there was evidence of nocturnal bradycardia which required the alteration of his beta blockers. At present he does not require any pacemaker. Postoperatively he had complications of pain at the vena puncture site and there is no evidence of aneurysm or false aneurysm at site of puncture on vascular Dopplers. Dr Hayat specifically asked me not to comment on his fitness to undergo proceedings as he is not under my direct care. However I can comment on similar cases and if there is no evidence of flow rate limiting disease and no evidence of significant arrhythmia I would assume in similar cases patients would be safe to undergo court proceedings.”
[32]In response to a request for information from Ms Mirza, Dr Cunnington, the consultant cardiologist who was treating the Appellant, sent a letter by email dated 7 November 2016 which stated:
“Please find Dr Hayat’s discharge summary attached. He was discharged on 4th November. He was admitted with chest pain and collapse (but no loss of consciousness) after taking GTN spray. His ECG showed no acute ischaemic changes and two troponin tests were normal. His echocardiogram showed preserved left ventricular systolic function. We offered him a coronary angiogram in view of some ongoing chest pain requiring GTN spray on the ward, and in view of a reported history of a previous angiogram showing a degree of stenosis in the left anterior descending (LAD) coronary artery. This showed no obstructive coronary artery disease, and thus no revascularisation is warranted. He had some discomfort in the right arm following the procedure; although there were no clear signs of any acute pathology we arranged a Doppler scan to exclude any vascular injury which was normal. The only abnormal finding of note was of asymptomatic nocturnal sinus pauses on his ambulatory ECG, which was performed less than 24hrs after stopping betablockers. This in itself is not an indication for a pacemaker, but I recommended he have repeat ambulatory ECG monitoring locally to exclude any daytime arrhythmia. Certainly, these pauses do not account for his original presentation with chest pain. We recommend stopping the betablocker altogether as there was no significant coronary artery disease, and left ventricular function is normal. In summary, we found no significant cardiac pathology which should stop the GMC proceedings from continuing.”
[33]The draft discharge sheet briefly summarised the key points in Dr Cunnington’s letter and listed the types of medication which he had been prescribed.[34]On 7 November 2016, Mr Javaid sent an email to Ms Mirza on behalf of the Appellant saying “I am unable to attend hearing due to my complication of angiogram…. medical evidence is on its way”.[35]Later on 7 November 2016, medical evidence was submitted on behalf of the Appellant. It was a form headed “Statement of Fitness for Work for Social Security or Statutory Sick Pay” completed and signed by his general practitioner (“GP”) at The Allum Practice, Leytonstone, dated 7 November 2016. It stated:
“I assessed your case on 7/11/2016 and because of the following condition(s): Dizziness (syncopal episodes) and chest pains. Admitted to Manchester Royal Infirmary – had nocturnal pauses on 24 ECG. Advised repeat 24 ECG and cardiology review. Developed post angiography right arm bruising +/- infection. I advise that you are not fit for work Comments, including functional effects of your condition(s): Referral to cardiology. Continue with antibiotics This will be the case from 1/11/2016 to 30/11/2016.”
I advise that you are not fit for work Comments, including functional effects of your condition(s): Referral to cardiology. Continue with antibiotics This will be the case from 1/11/2016 to 30/11/2016.”

Referral to cardiology. Continue with antibiotics

[36]On 7 November 2016, the Tribunal hearing resumed. Neither the Appellant nor his representative attended. During the course of the day, the letter from Dr Cunnington and the documents from the Appellant were produced. The GMC made a further application for the proceedings to continue in the Appellant’s absence.[37]The Tribunal considered the information which I have set out above. In addition, it was drawn to its attention that the Appellant’s letter of 5 November indicated that he had also attended Whipps Cross Hospital for treatment on 5 November 2016, although there was no information available from the hospital.[38]The Tribunal granted the GMC’s application to proceed in the absence of the Appellant, saying:
“13. The Tribunal has considered the medical evidence which Dr Bright has provided in relation to Dr Hayat. It noted that in the most recent letter dated 7 November 2016 he stated: “Postoperatively he had complications of pain at the vena puncture site and there is no evidence of aneurysm or false aneurysm at site of puncture on vascular Dopplers. Dr Hayat specifically asked me not to comment on his fitness to undergo proceedings as he is not under my direct care. However I can comment on similar cases and if there is no evidence of flow rate limiting disease and no evidence of significant arrhythmia I would assume in similar cases patients would be safe to undergo court proceedings.” 14. The Tribunal has considered the medical evidence provided by both Dr Bright and Dr Cunnington, who were both treating Dr Hayat between 31 October and 4 November 2016, in relation to Dr Hayat’s medical state. It notes that as of Friday 4 November 2016 Dr Hayat was considered fit for discharge and that he should attend follow-up for cardiology in two to four weeks. Dr Cunnington stated: “In summary, we found no significant cardiac pathology which should stop the GMC proceedings from continuing.”
The Tribunal has concluded that this is unequivocal and definitive evidence as to Dr Hayat’s health status at that time. 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 then 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 has considered the email sent on Dr Hayat’s behalf this morning at 08.55 am and subsequent Statement of Fitness from Work For social security or 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:
“Dizziness (syncopal episodes) and chest pains Admitted to Manchester Royal Infirmary– had nocturnal pauses on 24 ECG. Advised repeat 24 ECG and cardiology review. Developed post angiography right arm bruising +/- infection.”
It states that the functional effects of his condition are:
“Referral to Cardiology. Continue with antibiotics.”
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 considers 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.” “Postoperatively he had complications of pain at the vena puncture site and there is no evidence of aneurysm or false aneurysm at site of puncture on vascular Dopplers. Dr Hayat specifically asked me not to comment on his fitness to undergo proceedings as he is not under my direct care. However I can comment on similar cases and if there is no evidence of flow rate limiting disease and no evidence of significant arrhythmia I would assume in similar cases patients would be safe to undergo court proceedings.” “Dizziness (syncopal episodes) and chest pains Admitted to Manchester Royal Infirmary– had nocturnal pauses on 24 ECG. Advised repeat 24 ECG and cardiology review. Developed post angiography right arm bruising +/- infection.” “Referral to Cardiology. Continue with antibiotics.”[39]The Tribunal continued with the hearing, until the end of its allotted hearing time, on 18 November 2016, when it made its determination on the facts. It then adjourned part-heard to 14 and 15 February 2017. The Appellant did not attend the hearing days in November, but he did attend in February 2017 when he made an unsuccessful application to the Tribunal to admit three documents in evidence and hear submissions from him, in respect of the Tribunal’s findings of fact. Conclusions[40]Under the 2004 Rules, the Tribunal has power to adjourn hearings (rule 29) and to proceed in the absence of a practitioner (rule 31).[41]However, those discretionary powers are limited by the duty to act fairly, as required at common law and under Article 6 ECHR.[42]In my judgment, the Tribunal was entitled, in the exercise of its discretion to refuse the Appellant’s application for an adjournment on 31 October 2016, on the ground that he had insufficient time to prepare for the hearing and required more time to raise funds in order instruct a representative. Although the formal notice of the allegations was not served until 27 September 2016, the Appellant had been notified of the allegations which had been referred to the Tribunal by the Case Examiners in June 2016. He had been aware of the complaint since 2014. The hearing date had been fixed in June 2016, so the Appellant had 4 months in which to make the necessary arrangements for his representation. Therefore the Appellant had been given a reasonable period of notice of both the allegations and the hearing.[43]The Legal Assessor gave the Tribunal legal advice when it considered the application to proceed on 4 November 2016. It was not thought necessary to repeat the advice on 7 November 2016.[44]The Tribunal was referred to the case of Mahmood v GMC [2007] EWHC 474 (Admin), in which Mitting J. held:
“20. The reasoning of the Panel, which led to its conclusion to continue with the hearing on the 28th, was therefore, in my view, flawed. The test which it should have applied is clearly and uncontroversially set out in R v Jones [2003] 1 AC 1. In paragraph 6, Lord Bingham observed: “The existence of such a discretion [that is to say to continue with the hearing of the criminal trial in the absence of the defendant] is well established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion 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 than one who has voluntarily chosen to abscond.” 21. In paragraph 13, he observed: “If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin.” 22. At paragraph 38, Lord Hutton observed: “... in my opinion there can be circumstances where in the interests of justice a judge is entitled to decide to proceed, particularly when the defendant has deliberately absconded to avoid trial.” 23. If the Panel had decided on proper grounds that Dr Mahmood had deliberately absented himself from the hearing and had sought admission to UCH simply as a ploy, its decision to continue in his absence would have been unchallengeable. But it did not decide that. What it decided, as I have indicated, was that he had refused to provide information about his admission to hospital, condition, diagnosis and prognosis, and that there was a complete absence of medical evidence before the Panel. I have already indicated that the conclusion that he refused to provide that information was overstated, and that it is unsurprising that there was an absence of medical evidence before the Panel. On the information which it had and on the facts which it found, the Panel could not properly have concluded that his absence from the hearing was deliberate.” “The existence of such a discretion [that is to say to continue with the hearing of the criminal trial in the absence of the defendant] is well established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion 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 than one who has voluntarily chosen to abscond.” “If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin.” “... in my opinion there can be circumstances where in the interests of justice a judge is entitled to decide to proceed, particularly when the defendant has deliberately absconded to avoid trial.”
[45]The Legal Assessor specifically drew the Tribunal’s attention to paragraph 15 of Mitting J’s judgment in which he cited a passage from the judgment of Elias J. in Brabazon-Drenning v UKCC [2001] HRLR 6at [18]:
“… 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 when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process.”
[46]The Tribunal was also referred to GMC v Adeogba & Anor [2016] EWCA Civ 162, in which the Court of Appeal considered two cases of absence from the hearing, though not by reason of ill-health. Sir Brian Leveson P. set out the key principles from the criminal cases of R v Hayward [2001] EWCA Crim 168 and R v Jones [2002] UKHL 5; [2003] 1 AC 1, which were applied to the different context of a disciplinary tribunal in Tait v Royal College of Veterinary Surgeons [2003] UKPC 34. He considered these authorities to be a useful starting point for consideration of an application under rule 31 of the 2004 Rules.[47]In my judgment, the Legal Assessor correctly directed the Tribunal on the relevant legal principles. However, regrettably, I do not consider that the Tribunal applied those principles properly to the evidence which was before them.[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 post-dated 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 fact-finding 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.

Cited in 1 later judgment