General Medical Council v Ijaz Hayat
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice McCombe,Lord Justice Coulson |
| Judgment Date | 13 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2796 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/2272 |
| Date | 13 December 2018 |
[2018] EWCA Civ 2796
Lord Justice McCombe
Lord Justice Moylan
and
Lord Justice Coulson
Case No: C1/2017/2272
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Mrs Justice Lang
CO12762017
Royal Courts of Justice Strand, London, WC2A 2LL
Mr Rory Dunlop (instructed by GMC Legal) for the Appellant
Mr Al Mustakim & Mr Jayed Sarker (instructed by Direct Access) for the Respondent
Hearing date: Tuesday 20th November 2018
Approved Judgment
Introduction
This appeal arises out of the decision of the Medical Practitioners Tribunal (“the Tribunal”) of 7 November 2016, when they refused to adjourn disciplinary proceedings brought against Dr Hayat by the appellant (“GMC”) and proceeded in his absence. The Tribunal subsequently made findings of dishonesty and misconduct against Dr Hayat and found that his fitness to practice was impaired. After a subsequent hearing, which Dr Hayat did attend, the sanction imposed was erasure from the register.
Dr Hayat sought to appeal the Tribunal's findings. At a hearing on 27 June 2017 before Lang J in the Administrative Court, a new submission was made that the Tribunal had erred in failing to have regard to the relevant medical evidence before permitting the hearing to continue in the absence of Dr Hayat (see paragraph 27 below). Lang J allowed the appeal on that ground and remitted the other, substantive grounds of appeal, for reconsideration by a fresh panel of the Tribunal.
The GMC appealed that decision, submitting that Lang J had erred in principle in her consideration and analysis of the Tribunal's decision not to adjourn the disciplinary hearing on 7 November 2016. Permission to appeal to this court was granted on that basis. The GMC accept that, even if this appeal is successful, the other substantive points – with which Lang J did not deal – will have to be remitted to the High Court in any event.
The Factual Background
The factual background is convoluted. I set out below only those elements which seem to me to be relevant to the Tribunal's decision not to adjourn the hearing on 7 November 2016.
Dr Hayat has admitted a number of instances of deceit in the past. For example, during a custody hearing in July 2003, he claimed to be suffering from chest pains and the hearing was adjourned so that he could be admitted to hospital. He later admitted in writing that he had faked the chest pains in an attempt to win sympathy from his wife. In another incident, in June 2010, Dr Hayat claimed on an insurance form that he was adopted, a claim which he subsequently accepted to be untrue.
In September 2012, Dr Hayat travelled to Pakistan. On his return to the UK he claimed to have suffered a heart attack whilst there, and chest pains on the return flight. When he was examined in the UK, the doctors who examined him thought it was very unlikely that he had suffered a heart attack. On 18 October 2012, Dr Hayat made a claim on his insurance policy with Friends Life.
The claim was investigated by Friends Life. For reasons which will become apparent below, it is not appropriate to go into the detail of what they found. Suffice to say that, as a result of these investigations, Friends Life declined Dr Hayat's claim and referred the matter to the GMC and the police. Thereafter, disciplinary proceedings were instituted by the GMC, and Dr Hayat was given written notice of the allegations against him. He denied them and provided a witness statement dated 21 February 2014. The witness statement did not provide any detailed response to the allegations made.
The Tribunal listed a fitness to practice hearing for 15 days starting on 31 October 2016. The lengthy time estimate was a reflection of the number of witnesses required for the hearing. On 3 October 2016, Dr Hayat applied to adjourn the hearing on the basis that he had had insufficient time to prepare, but his application to adjourn was refused.
On 22 October 2016 Dr Hayat made a second application to adjourn the forthcoming hearing, saying he did not have sufficient funds to pay for lawyers. Again, the application to adjourn was refused.
The hearing began on Monday 31 October 2016. Dr Hayat was represented by counsel who applied for an adjournment of the hearing – the third such attempt – on the basis of a handwritten letter dated 30 October 2016 from an A&E doctor at King George Hospital which said that Dr Hayat should be “off work for 7 days” due to back pain. In a written determination handed down on 31 October 2016, the Tribunal refused the application to adjourn and explained in some detail why the handwritten note was insufficient to justify an adjournment on medical grounds. From that determination, Dr Hayat would have known that any medical evidence on which he wanted to rely to justify an adjournment would need to explain what his condition was and why it prevented him from participating. He would also have known from their determination that the Tribunal was also alive to the public interest in ensuring, where possible, that hearings were not adjourned at the last minute.
On these issues, the Tribunal said:
“12. The Tribunal has considered the additional material presented to it which included a letter from Dawn Solicitors dated 19 October 2016, email correspondence and the medical evidence referred to. It notes that the medical evidence does not contain the dosage levels of the medication which are being prescribed for Dr Hayat. The Tribunal also notes that the letter does not provide any detail to any potential impact, the pain and discomfort, or medication could have on Dr Hayat. The letter does not indicate that Dr Hayat was unfit to instruct a representative or participate in the hearings. The Tribunal is also aware that you have been able to take instructions today for the purposes of this application to adjourn proceedings from Dr Hayat.
13. The Tribunal took account of the matters which were raised in the previous two postponement applications and the material submitted today. The Tribunal is satisfied that Dr Hayat has been given sufficient time and opportunity to address the issues raised in the postponement applications and the letter dated 19 October 2016. Nevertheless, the Tribunal considers there is insufficient clarity as to the progress made addressing the outstanding issues…
14. The Tribunal has also considered the impact on the public interest of adjourning a hearing scheduled for 15 days and the inconvenience it would cause to witnesses.
15. In all the circumstances, the Tribunal is satisfied that it is in the interest of justice and in the public interest for the hearing to proceed as scheduled and for your application to be rejected.”
Immediately after lunch on 31 October, after the determination had been read out, the Tribunal staff found Dr Hayat sitting in a chair presenting as unconscious. The emergency services were called, but when a paramedic attempted to pass a tube through his nose, Dr Hayat reacted and informed the paramedic that he was suffering chest pains. He was taken to Manchester Royal Infirmary (“MRI”) and the hearing was adjourned.
The Medical Evidence and the Relevant Determinations by the Tribunal
On Tuesday 1 November 2016, the GMC was in contact with MRI and spoke to Dr Bright, then Dr Hayat's treating doctor. Dr Bright confirmed that it was his understanding that Dr Hayat had not been unconscious the previous day (a view apparently shared by the paramedic who attended him) and that there was no evidence of a cardiac event. Dr Bright said that Dr Hayat would be fit to attend a hearing on discharge, which at the time was set for the following morning.
On the morning of Wednesday 2 November, Dr Hayat underwent an angiogram, the result of which was described as “perfectly normal”, again something that Dr Bright confirmed to the GMC. At some point that day, it appears that Dr Hayat indicated that he did not want Dr Bright to be involved in any further interactions with the GMC (although that prohibition was subsequently rescinded).
Dr Hayat stayed in hospital on 3 November because, as Dr Bright mentioned to the GMC in a telephone conversation that day, there was a ‘pain complication’ arising from the angiogram. In a letter dated 4 November, Dr Bright expanded on this, describing it as “a complication of pain associated with his arterial puncture site secondary to his angiography and as of yesterday he was awaiting a vascular ultrasound of his side”.
On Friday 4 November, Dr Hayat was discharged. He did not attend the Tribunal. The GMC applied for proceedings to continue in his absence. The Tribunal refused that application. They again provided a detailed written determination. Referring to Dr Bright's reference to the “complication of pain” the Tribunal went on to say:
“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.”
The hearing was adjourned until 7 November (the following Monday). The GMC immediately wrote to Dr Hayat to warn him that “in the absence of any medical information that you are unfit to attend a hearing or any other good reason for your non-attendance, the GMC will now be inviting the tribunal to hear the case in your absence”. The letter went on to say:
“I would encourage you to make contact with the GMC as soon as possible to provide an update on your health and fitness to attend the hearing or provide written consent for your treating doctor to do so urgently. The onus is on you to ensure the Tribunal is kept abreast of your...
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