R Evgeniy Igorovich Kuzmin v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Mr Justice Butcher |
| Judgment Date | 05 August 2019 |
| Neutral Citation | [2019] EWHC 2129 (Admin) |
| Date | 05 August 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5128/2018 |
[2019] EWHC 2129 (Admin)
IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN MANCHESTER DIVISIONAL COURT
Manchester Civil Justice Centre
1 Bridge Street,
Manchester M60 9DJ
Lord Justice Hickinbottom
and
Mr Justice Butcher
Case No: CO/5128/2018
Mary O'Rourke QC (instructed by Gunnercooke LLP) for the Claimant
Eleanor Grey QC (instructed by GMC Legal) for the Defendant
Hearing date: 23 July 2019
Approved Judgment
Introduction
This claim raises the important issue of whether a panel of the Medical Practitioners Tribunal (“the MPT”) is entitled to draw an adverse inference from a practitioner's failure to give evidence at a disciplinary tribunal hearing of charges brought against him.
The Claimant is a registered medical practitioner. Disciplinary proceedings against him were brought before the MPT by the regulator and responsible disciplinary body for such practitioners, the General Medical Council (“the GMC”), in which an allegation of dishonesty was made. At the close of the GMC's case, following an unsuccessful application to have the case dismissed, the Claimant withdrew his witness statement and indicated that he would not give evidence before the tribunal. The GMC sought a ruling from the tribunal that, as a matter of principle, it (the MPT) had the power to draw an adverse inference from the fact that a doctor against whom charges are made does not give evidence. After hearing submissions on that issue, on 11 October 2018, the tribunal concluded that it had that power. The Claimant now challenges that decision.
Before us, Mary O'Rourke QC appeared for the Claimant and Eleanor Grey QC for the GMC. At the outset, I thank them for their helpful submissions.
I stress that the challenged decision is one of principle. Leaving aside the facts of the Claimant's own case, Ms O'Rourke submits that, in disciplinary proceedings against a medical practitioner, the practitioner has a right to remain silent; and the MPT cannot in any circumstances draw an adverse inference from him remaining silent. Ms Grey submits that, in appropriate circumstances, it may do so. Having determined that it had the power as a matter of principle, the tribunal itself said that it would not consider whether to draw any inference on the facts of the Claimant's case until it had heard full submissions on the facts: and whether the tribunal should draw such an inference on the facts of this case is not in issue before us.
The Facts
The GMC is a body charged by the Medical Act 1983 (“the 1983 Act”) with various functions relating to medical practitioners, its over-arching objective being “the protection of the public” (section 1(1A)). Its functions include keeping a register of all those who practise medicine in the United Kingdom (section 2 and Part IV) and investigating allegations that a registered doctor's fitness to practise is impaired (Part V).
From 11 June 2011, the GMC established the Medical Practitioners Tribunal Service (“the MPTS”) as an adjudication arm. The MPTS arranges and manages panels of the MPT and Interim Orders Tribunals (“IOTs”) more or less independently of the GMC, although it does not have a separate legal personality and the GMC funds and is ultimately responsible for the service. Hence, the GMC is the Defendant in this claim.
Investigations are conducted under the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (SI 2004 No 2608) (“the Rules”). Under those Rules, where an allegation that a registered medical practitioner's fitness to practise is impaired, having given the practitioner an opportunity to respond to the allegation, case examiners must decide what steps to take which include referring allegations to the MPTS for determination by an MPT (rule 8(2)(d)). If at any stage a case examiner considers that an interim order should be considered, then he is under a duty to refer the matter to the Registrar: and, if he agrees, then he must refer it to the MPTS for it to arrange for the matter to be considered by an IOT (rules 6 and 8(6)).
The Claimant graduated from the Bukovian State Medical University, Ukraine in July 1997, and then completed a Certificate in Obstetrics and Gynaecology at the same institution. He was registered with the GMC in February 2006, from when he practised medicine in the United Kingdom primarily in obstetrics and gynaecology, before commencing the GP Vocational Training Scheme in August 2011.
As part of this training, he was required to perform a certain amount of out-of-hours work; and, in August 2016, he registered with Hampshire Doctors on Call Service (“Hampshire DOCS”), a GP out-of-hours service. However, concerns were expressed as a result of alleged poor record keeping, use of the EMIS Web primary care clinical system and a missed referral during the earlier part of his training; and charges were brought by the GMC. As a result, from September 2016, he was “deactivated” from Hampshire DOCS pending the resolution of those issues.
The GMC opened an investigation into the Claimant (“the 2016 investigation”); and, on 15 November 2016, he appeared before the IOT which placed conditions on his registration. Condition 8(f) included a requirement that he inform any out-of-hours service that his registration was subject to Conditions 1–7. Those conditions were from time-to-time reviewed and maintained, including at a hearing on 5 May 2017 which the Claimant attended.
The Claimant did not notify Hampshire DOCS of Conditions 1–7. Indeed, on 7 June 2017, he emailed Hampshire DOCS asking to resume his work for them, making no mention of the conditions. He wrote to them again on 20 and 28 June 2017, on neither occasion mentioning the conditions. Hampshire DOCS found out about the conditions from another source – Dr A – and the Claimant only told Hampshire DOCS about them when prompted to do so by that same doctor. As part of the correspondence, on 4 July 2017 Dr A emailed the Claimant asking him to disclose Conditions 1–7 to Hampshire DOCS; and, on 6 July 2017, the Claimant responded to say that he would do so. It seems to have been common ground before the tribunal that the Claimant did not disclose all seven conditions to Hampshire DOCS, but only those conditions he considered were relevant to them.
The 2016 investigation led to a hearing before the MPT in January 2018, at which the tribunal found no misconduct on the Claimant's part. However, the Claimant's failure to inform Hampshire DOCS of Conditions 1–7 in alleged breach of Condition 8(f) attached to his registration by the IOT resulted in further MPT proceedings. In those proceedings, there appear to have been two primary issues, namely:
i) whether the Claimant was registered with Hampshire DOCS at the relevant time, and whether he was obliged by the IOT order to disclose Conditions 1–7 to Hampshire DOCS; and
ii) if so, whether the Claimant's failure to disclose those conditions was dishonest.
For those proceedings, the Claimant filed a signed statement. It strenuously denied dishonesty (paragraph 12): indeed, it explained at length how the Claimant said the failure had happened and why it was not dishonest. The Claimant said he did not contact Hampshire DOCS because he was not at that time “active so to speak with [them]” (paragraph 7). In any event, he thought that they had been informed (paragraph 8). He was under immense pressure due to the GMC investigation itself (paragraph 9); and he was also concerned at that time about his mother's health (paragraph 10). It was a “complete oversight” (paragraph 12), in a situation which he considered was “overwhelming” (paragraph 15).
The MPT hearing began on 3 July 2018 before a panel comprising a chair and two wing members (none of the three being a legal member), with a legal assessor. The charge was amended so as to read as follows:
“That being registered under the Medical Act 1983 (as amended):
1. On 15 November the [IOT] imposed an interim order of conditions (‘the interim order’) on your registration.
2. On 5 May 2017 the interim order was reviewed by the IOT, at which you were in attendance.
3. On or around 7 June 2017, you failed to inform [Hampshire DOCS], the out-of-hours service, with whom you were registered, of conditions 1–7 of the interim order as required by condition 8 of the interim order.
4. You failed to provide details of the full conditions imposed on your registration by the IOT, in response to email requests made on… 4 July 2017 by Dr A.
5. Your actions as described above at paragraphs 3 was dishonest.”
At the conclusion of the GMC's case, which included the examination and cross-examination of the rota manager of Hampshire DOCS, the Claimant through Ms O'Rourke (who also represented him there) made an application of no case to answer, She submitted that there was no evidence or no sufficient evidence upon which the tribunal could properly conclude that the Claimant was (i) registered with Hampshire DOCS on 7 June 2017; (ii) under a duty to inform Hampshire DOCS of Conditions 1–7 on or about 7 June 2017; (iii) under a duty to respond to Dr A's email of 7 July 2017 by disclosing Conditions 1–7; and (iv) dishonest. That application was rejected by the tribunal on 5 July 2018. Notably, the tribunal held that there was evidence upon which dishonesty could be inferred: in particular, the Claimant had attended the IOT meeting on 3 May 2017, and the conclusion could be drawn that he knew of his obligation to inform Hampshire DOCS of Conditions 1–7 and he deliberately failed to comply with it.
That determination having been delivered, the Claimant indicated that he would not call any evidence, and he applied to withdraw his witness...
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