General Medical Council v Dr Louise Armstrong
| Jurisdiction | England & Wales |
| Judge | Lane J |
| Judgment Date | 23 June 2021 |
| Neutral Citation | [2021] EWHC 1658 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 June 2021 |
| Docket Number | Case No: CO/572/2020 |
[2021] EWHC 1658 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPEAL UNDER SECTION 40A OF THE MEDICAL ACT 1983
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Lane
Case No: CO/572/2020
For the Appellant: No appearance and no representation
For the Respondent: Mr Ivan Hare QC, instructed by GMC Legal
Hearing date: 27 May 2021
Approved Judgment
The appellant appeals against the determination of the Medical Practitioners Tribunal (“MPT”) on 21 January 2020 that the respondent's fitness to practise was not impaired. The appellant asks the court to quash the MPT's decision on non-impairment; to substitute a finding of impairment; and to remit the matter of sanction to the MPT, to be determined in the light of the court's judgment.
Preliminary issue
The hearing on 27 May 2021 had been arranged to take place remotely, via Microsoft Teams. This accorded with the wishes of both parties. The hearing had originally been due to take place in March 2021 but was adjourned, by reason of the respondent requesting extra time in order to arrange legal representation.
The adjourned hearing was listed for 14 April 2021 before Lavender J. Prior to that hearing, the respondent had applied for a further adjournment in order to arrange legal representation. That application was opposed by the appellant, following which the court indicated that it would hear the respondent's application at the start of the hearing on 14 April; and that the hearing would proceed remotely. In the event, Lavender J adjourned the hearing because on the morning of it, it emerged that (through an oversight) the respondent had not been sent the sign-in details for the remote hearing. Efforts to contact the respondent that morning met with no response. In his order, Lavender J drew the attention of the respondent to the following:-
“The court has the power to proceed with the Appellant's appeal in the absence of the Respondent (and any representative of the Respondent). The Appellant has indicated that it will invite the court to exercise that power in the event that the Respondent does not appear and/or is not represented at the re-scheduled hearing.”
Following the assignment of the case to me, I caused an email to be sent by the Administrative Court Office to the respondent, asking if she would confirm if she was proposing to take part in the hearing on 27 May, despite the time difference between the United Kingdom and Australia, where it is understood the respondent is currently residing. On 25 May 2021, the respondent emailed the Office as follows: “Thank you for your email. I will not be attending the case and I will not be represented. Many thanks”. That email was copied to Ms Eden of GMC Legal.
Unsurprisingly, therefore, on 27 May there was no attendance by the respondent or any representative of hers. I heard submissions from Mr Hare QC, for the appellant, on the preliminary issue of whether, in view of the respondent's non-attendance, I should continue with the hearing of the appeal. At the end of those submissions, I delivered an ex-tempore judgment on the preliminary issue. Unfortunately, however, I was subsequently informed that the recording function on Microsoft Teams had failed, with the result that no transcript could be made. Accordingly, what follows in paragraphs 6 to 10 below is not a verbatim reproduction of my judgment, albeit that I have endeavoured to set out all the salient matters.
Mr Hare drew my attention to the judgment of Lewis J (as he then was) in General Medical Council v Theodoropolous [2017] EWHC 1984 (Admin). At paragraphs 21 to 26 of his judgment, Lewis J concluded that the power of this court to hear an appeal under section 40A in the absence of a party is to be found in the inherent jurisdiction of the court; rather than anything in the 1983 Act or the Civil Procedure Rules. In deciding whether to proceed with such an appeal where a party does not attend, and the court is satisfied that the notice of hearing has been properly sent and there is no record of attempts to inform the court why a party is not attending or to request an adjournment, Lewis J derived assistance from the judgment of the Court of Appeal in General Medical Council v Adeogba [2016] 1 WLR 3867. Although Adeogba was concerned with a party who failed to attend a Tribunal hearing, Lewis J considered that it was appropriate to adapt the language of the Court of Appeal's judgment so as to identify the following criteria for deciding whether to proceed:-
“(i) the nature and circumstances leading to the respondent being absent, and in particular, whether the absence is deliberate and voluntary and such as to amount to a waiver of any right to attend; (ii) whether an adjournment might result in the respondent attending; (iii) the likely length of any adjournment; (iv) whether the respondent is or wishes to be legally represented or by his conduct has waived any right to be represented; (v) whether the respondent would be able to give instructions to a legal representative before or during the hearing; (vi) the extent of the disadvantage to the respondent of not being able to attend; (vii) the general public interest; (viii) the effect of delay on the memories of witnesses.” (paragraph 28)
Lewis J observed that other criteria mentioned by the Court of Appeal were not apposite to an appeal hearing. I respectfully agree.
Taking the relevant criteria in turn, (i) it is plain from her email that the respondent has made a deliberate decision not to attend the hearing, either in person (via remote means) or by means of a representative. Her email could not, in my view, be clearer in this regard. The respondent has waived her right to attend the hearing. (ii) Accordingly, it is manifest that an adjournment is highly unlikely to result in the respondent attending. She has not requested a further adjournment. (iii) In the circumstances, consideration of the likely length of any adjournment is irrelevant. I would, however, merely note at this point that any further delay in an appeal which has already been adjourned previously on two occasions would be highly undesirable. (iv) The respondent's email constitutes a waiver of her right to be represented. (v) The question of whether the respondent would be able to give instructions to a legal representative before or during the hearing is, accordingly, immaterial. In any event, since the beginning of the Covid 19 pandemic, remote hearings have assumed a form in which it is perfectly possible for such instructions to be given during the hearing. There has, so far as I am aware, been no indication by the appellant that she has encountered difficulties in giving instructions to a legal representative (as opposed to arranging for such representation). (vi) In assessing the extent of any disadvantage to the respondent not being able to attend the hearing, it is plainly relevant to have regard to criterion (i) above. A party who waives their right to attend necessarily forfeits any advantage they may have obtained by attending the hearing. It is also important to remind myself that, as Lewis J held at paragraph 30 of Theodoropoulos, the extent of any disadvantage in relation to an appeal is limited, compared with that in relation to a first-instance Tribunal hearing, where findings of fact (including credibility) may be at issue. That said, the fact that an appeal is concerned with legal arguments cannot, of course, mean that the court will likely conclude that proceeding in the absence of a party or their representative is fair. On the present case, the most important factor limiting the significance of criterion (vi) is, as I have said, the categorical decisions of the respondent not to attend or be represented. (vii) Mr Hare was, in my view, right to submit that the public interest criterion in the present case is very substantial. The appeal commenced in February 2020 and remains unresolved over fifteen months later. Appeals under section 40A possess a fixed, strong public interest element. Notwithstanding that the respondent does not, it seems, wish to practise as a doctor in the United Kingdom in the near future, there remains a significant public interest in resolving whether she should be allowed to do so; in addition to the broader public interest in whether the Tribunal's approach to a doctor's dishonesty was wrong. (viii) In the circumstances, the effect of the delay is unlikely to have any impact upon the memories of witnesses. As we shall see, the respondent admitted the facts of the allegations made against her. Although a number of witness statements were taken from third parties, in the event, only the appellant was called to give oral evidence.
Despite the wide-ranging nature of criteria (i) to (viii), the court should not shut its mind to other relevant matters. In the present case, I agree with Mr Hare that, in deciding whether to proceed, it is relevant that the appellant does not invite this court to determine any sanction, were it to conclude that the respondent's fitness to practise is impaired. In that eventuality, the issue of sanction would need to be considered by the MPT on remittal. The respondent would have the right to appear and/or be represented at that stage. In the circumstances, this additional criterion carries some, albeit limited, weight in favour of proceeding.
Standing back and considering all the criteria, I was entirely satisfied that I should exercise my inherent power to proceed with the hearing of the appeal, in the absence of the respondent.
The allegations
The respondent qualified as a doctor in 1999 from the University of Newcastle upon Tyne. She completed her General Practitioner training in 2004...
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