General Medical Council v Olufemi Adeyinka Adeogba
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Lord Justice Gross,Sir Stanley Burnton |
| Judgment Date | 18 March 2016 |
| Neutral Citation | [2016] EWCA Civ 162 |
| Docket Number | Case No: C1/2014/2822; 2014/4197 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 2016 |
[2016] EWCA Civ 162
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice Gross
Sir Stanley Burnton
(sitting as a Judge of the Court of Appeal)
Case No: C1/2014/2822; 2014/4197
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Graham Wood Q.C. CO/218/2014
His Honour Judge Bird CO/2219/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Ivan Hare (instructed by GMC Legal, Manchester) for the Appellant
Simon Gurney (instructed under direct access rules) for Olufemi Adeyinka Adeogba
Evangelos-Efstathios Visvardis did not appear and was not represented
Hearing date : 24 February 2016
These appeals (which are factually unconnected) both concern the approach to be adopted by a professional regulator, in this case the General Medical Council ("the GMC"), when those whom it seeks to regulate do not participate in the potentially lengthy disciplinary hearing convened to examine their behaviour. In neither case did the doctor concerned attend the panel. Dr Olufemi Adeyinka Adeogba ("Dr Adeogba"), was in Nigeria, did not answer correspondence and did not attend the hearing because, knowing of the investigation and his time limited suspension, he left the country and then failed to access the only mechanisms available to the GMC to communicate with him. Dr Evangelos-Efstathios Visvardis ("Dr Visvardis") challenged the disciplinary process and refused to participate until his concerns had been addressed.
In both cases, arrangements had been made for what were anticipated might be proceedings of substantial length. Such a hearing was listed for some 20 days (from 9 December 2013) in the case of Dr Adeogba and for 7 days (3–11 April 2014) in the case of Dr Visvardis. Having considered the available evidence as to the reasons for non-attendance, in both cases the Fitness to Practise Panel of the Medical Practitioners Tribunal Service ("the Panel") appointed to hear the complaints determined to continue in the absence of the doctor. Having examined and, to some extent, tested the evidence supporting the complaint, in whole or in part, the cases were found proved. Having followed the procedure prescribed by the General Medical Council (Fitness to Practise) Rules 2004 ("the Rules"), both doctors were erased from the medical register.
Both doctors appealed against the decision in their individual case to the Administrative Court. On 1 August 2014, His Honour Judge Graham Wood Q.C. (sitting as a deputy Judge of the High Court) having admitted fresh evidence, determined that the Panel was wrong to proceed in the absence of Dr Adeogba: see [2014] EWHC 3872 (Admin). On 28 November 2014, His Honour Judge Bird (similarly sitting as a deputy Judge of the High Court) also decided that the (differently constituted) Panel was wrong to proceed in the absence of Dr Visvardis: see [2014] EWHC 4531 (Admin). In both cases, fresh hearings were ordered; further challenges to the findings of the Panels were not analysed.
Granting leave to appeal for a second appeal, again in both cases, Pitchford LJ observed that the grounds raised important points of principle and practice in relation to matters of public interest, the merits of which were strong; he directed that the cases should be linked. As regards the significance of the issues raised, there is no doubt that Pitchford LJ was correct: the statistics with which we were provided from the Panel are to the effect that of 488 cases before the panel in the two calendar years 2014 and 2015, 146 proceeded in the absence of the affected practitioner.
We have proceeded by considering, in each case, the decision to proceed in the absence of the medical practitioner and the question of the admissibility of fresh evidence both as to the reason for non-appearance and, in the case of Dr Adeogba, the general merits. We have not analysed the remaining unresolved issues relating to the challenge to the respective decisions of the Panels based on the material which was, in fact, adduced as evidence. In relation to Dr Adeogba, it has been agreed that if the GMC successfully challenge either decision, any remaining unresolved issues should be remitted for determination in the High Court; Dr Visvardis has not engaged in this appeal but, in the circumstances, we would take the same course in his case. Before considering the facts of the cases and the individual appeals, I shall analyse the statutory regime and the issues of law involved.
The Law: Proceeding in Absence
There is a clear public interest in the proper regulation of the medical profession and the mechanism by which Parliament has determined that this public interest should be satisfied is through the GMC, a body corporate recognised by s. 1(1) of the Medical Act 1983 ("1983 Act") as having the functions assigned to them by that Act. By s. 1(1A), its priority is clear:
"The main objective of the [GMC] in exercising their functions is to protect, promote and maintain the health and safety of the public."
The mechanism whereby the GMC operates is also described in the legislation: see s. 1(3) of the 1983 Act. It operates through a number of committees, including Interim Orders Panels, an Investigation Committee, and one or more Panels whose functions are to investigate and resolve allegations against medical practitioners: see Part V. In that regard, s. 35C specifies that the Investigation Committee investigates allegations of registered persons' fitness to practise being impaired and decides whether allegations should be considered by a Fitness to Practise Panel. Under s. 35D, it is the responsibility of the Panel to determine whether a person's fitness to practise is impaired and, if so, decide on appropriate sanction. An Interim Orders Panel or Fitness to Practise Panel also may make an order to suspend or make a person's registration conditional (s. 41A).
Exercising its powers under the Act and after appropriate consultation, the GMC have promulgated the 2004 Rules which regulate the procedure by which these committees investigate and resolve allegations against medical practitioners. Having regard to the objective identified by s. 1(1A) of the 1983 Act, it is not surprising that these Rules must be construed accordingly. Thus, in Zia v General Medical Council [2011] EWCA Civ 743; [2012] 1 WLR 504, Tomlinson LJ made clear (at [46]):
"Thus I do not, for my part, approach the construction of the Rules on the basis that the various stages described therein should be regarded as prescribed for the protection of the person against whom the allegation is made. I approach the task of construction of the Rules rather on the footing that the Rules are intended to provide a framework for the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners."
In the context of the issues in these cases, a number of rules fall to be considered. Thus, Rule 31 of the 2004 Rules provides:
"Where the practitioner is neither present nor represented at a [fitness to practise] hearing, the Committee or Panel may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules."
As for notice, Rule 15 provides:
"(1) … as soon as reasonably practicable after an allegation has been referred to a FTP Panel the Registrar shall serve a notice of hearing on the practitioner.
(2) The notice of hearing shall—
(a) particularise the allegation against the practitioner and the facts upon which it is based;
(b) specify the date, time and venue of the hearing;
(c) inform the practitioner of his right to attend the hearing and to be represented at the hearing in accordance with rule 33;
(d) inform the practitioner of the power of the FTP Panel to proceed in his absence under rule 31;
(e) inform the practitioner of his right to adduce evidence in accordance with rule 34 and to call and cross-examine witnesses; and
(f) inform the practitioner of the FTP Panel's powers of disposal under section 35D, section 38 and section 41A of the Act.
(3) The Registrar shall give no less than 28 days' notice of the date and location of the hearing and no less than 7 days' notice of the precise time and venue of the hearing.
(4) The Registrar may give a shorter period of notice than that specified in paragraph (3) where the practitioner consents or the Registrar considers it reasonable in the public interest in the exceptional circumstances of the case of the hearing."
Furthermore, Rule 40 provides:
..."(1) Any notice of hearing required to be served upon the practitioner under these Rules shall be served in accordance with paragraph 8 of Schedule 4 to the [1983] Act.
(2) Subject to paragraph (1), any notice or document required to be served upon the practitioner under these Rules may be served—
(a) by ordinary post; or
(b) by electronic mail to an electronic mail address that the practitioner has notified to the Registrar as an address for communications.
(3) If the practitioner is represented by—
(a) a solicitor, the notice or document may also be—
(i) sent or delivered to the solicitor's practising address, or
(ii) sent by electronic mail to an electronic mail address of the solicitor; or
(b) a trade union or defence organisation, the notice or document may also be—
(i) sent or delivered to the trade union or defence organisation's business address; or
(ii) sent by electronic mail to an electronic mail address of the trade union or defence organisation,
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