TZ v General Medical Council

JurisdictionEngland & Wales
JudgeMr Justice Gilbart
Judgment Date17 April 2015
Neutral Citation[2015] EWHC 1001 (Admin)
Docket NumberCase No: CO/4490/2014
CourtQueen's Bench Division (Administrative Court)
Date17 April 2015

[2015] EWHC 1001 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Gilbart

Case No: CO/4490/2014

Between:
TZ
Appellant
and
General Medical Council
Respondent

Christopher Geering (instructed through Direct Access) for the Appellant

Ivan Hare (instructed by GMC Legal) for the Respondent

Hearing dates: 17 March 2015

Mr Justice Gilbart
1

This is an appeal brought under section 40 of the Medical Act 1983 (" MA 1983") against the decision of a Fitness to Practise Panel administered by the Medical Practitioners Tribunal Service ("MPTS"), part of the General Medical Council ("GMC"), whereby it held that the Appellant's fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section 35D of the Act.

2

That decision was made by the Panel after a hearing which concluded on 28th August 2014 at the MPTS hearing centre in St James's Building, Oxford Street, Manchester. The hearing had taken a total of 16 days sitting on 20–24 January, 12–14 March, 24–25 and 28 April, 24 and 26 June and 26–28 August 2014.

3

The central issue in this appeal relates to the refusal of the Panel to consider an application that it should permit the adduction of evidence after it had adjourned to consider its factual findings on the issue of misconduct, had sent an embargoed draft of its findings to the parties, but had yet not handed down those findings.

(1) Medical Act 1983 and Fitness to Practise Rules

4

The statutory context for the powers of the Panel and of this court appear in Part V of the MA 1983, entitled "Fitness to Practise and Medical Ethics." The Fitness to Practise Rules, which are made by the General Medical Council and then given force by an Order of the Privy Council, deal with the procedures to be followed.

5

The following provisions of the MA 1983 are relevant:

i) 35C Functions of the Investigation Committee

"(1) This section applies where an allegation is made to the General Council against—

(a) a fully registered person;

(b) ……………………………………………………

(c) ……………………………………………………

that his fitness to practise is impaired.

(2) A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of—

(a) misconduct……

(4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel.

(5) If the Investigation Committee decide that the allegation ought to be considered by a Fitness to Practise Panel—

(a) they shall give a direction to that effect to the Registrar;

(b) the Registrar shall refer the allegation to a Fitness to Practise Panel; and

(c) the Registrar shall serve a notification of the Committee's decision on the person who is the subject of the allegation and the person making the allegation (if any)."

ii) Section 35D sets out the functions of a Fitness to Practise Panel

"(1) Where an allegation against a person is referred under section 35C above to a Fitness to Practise Panel, subsections (2) and (3) below shall apply.

(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit—

(a) except in a health case, direct that the person's name shall be erased from the register…."

iii) 35E Provisions supplementary to section 35D

(1) Where, under section 35D above, a Fitness to Practise Panel—

(a) give a direction that a person's name shall be erased from the register……..

the Registrar shall forthwith serve on the person concerned notification of the direction or variation and of his right to appeal against it under section 40 below.

iv) 40 Appeals

(1) The following decisions are appealable decisions for the purposes of this section, that is to say—

(a) a decision of a Fitness to Practise Panel under section 35D above giving a direction for erasure……….;

(4) A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 35E(1) above, or section 41( 10) or 45(7) below, appeal against the decision to the relevant court.

(5) In subsection (4) above, "the relevant court"—

(c) ………..means the High Court of Justice in England and Wales.

(7) On an appeal under this section from a Fitness to Practise Panel, the court may—

(a) dismiss the appeal;

(b) allow the appeal and quash the direction or variation appealed against;

(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or

(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court, and may make such order as to costs …….. as it thinks fit.

(9) On an appeal under this section from a Fitness to Practise Panel, the General Council may appear as respondent; and for the purpose of enabling directions to be given as to the costs of any such appeal the Council shall be deemed to be a party thereto, whether they appear on the hearing of the appeal or not."

6

So far as the Fitness to Practise Rules are concerned, the version current at the relevant time was the Fitness to Practise Rules 2004 as amended in July 2013. The parts relevant to this claim read as follows:

" Case management

16. (1) The Registrar shall appoint one or more legally qualified Case Managers for the purposes of this rule.

(2) Following the referral of a case to a FTP Panel for—

(a) a hearing to consider an allegation in accordance with rule 17;

(b) ……………………….

(c) ………………………..

the Registrar may list the matter for a case review before a Case Manager.

(5) The Case Manager shall act independently of the parties and may give directions to secure the just, expeditious and effective running of proceedings before the FTP Panel.

(6) Directions issued by the Case Manager may include, but are not limited to, such of the following as he considers appropriate having regard to the nature of the allegation, any representations made by the parties and all other material factors—

(a) that each party disclose to the other—

(i) any documentary evidence in their possession or power relating to the allegation,

(ii) details of the witnesses (including the practitioner) on whom they intend to rely and signed witness statements setting out the substance of their evidence…….

(iii) a curriculum vitae and an expert report in respect of any expert on whom they intend to rely, and

(iv) skeleton arguments;

(h) a direction for an adjournment of the case review or an additional case review where the circumstances of the case require; and

(i) time limits for compliance with any of the directions listed above.

Procedure before a FTP Panel

17 (1) A FTP Panel shall consider any allegations referred to it in accordance with these Rules, and shall dispose of the case in accordance with sections 35D, 38 and 41A of the Act.

(2) The order of proceedings at the hearing shall be as follows—

(f) where facts remain in dispute, the Presenting Officer shall open the case for the General Council and may adduce evidence and call witnesses in support of it;

(g) the practitioner may make submissions regarding whether sufficient evidence has been adduced to find the facts proved or to support a finding of impairment, and the FTP Panel shall consider and announce its decision as to whether any such submissions should be upheld;

(h) the practitioner may open his case and may adduce evidence and call witnesses in support of it;

(i) the FTP Panel shall consider and announce its findings of fact;

(j) the FTP Panel shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner's fitness to practise is impaired;

(k) the FTP Panel shall consider and announce its finding on the question of whether the fitness to practise of the practitioner is impaired, and shall give its reasons for that decision;

(l) the FTP Panel may receive further evidence and hear any further submissions from the parties as to the appropriate sanction, if any, to be imposed or, where the practitioner's fitness to practise is not found to be impaired, the question of whether a warning should be imposed;

(m) ……………………………….

(n) the FTP Panel shall consider and announce its decision as to the sanction or warning, if any, to be imposed or undertakings to be taken into account and shall give its reasons for that decision;

(o) where the FTP Panel considers that an order for immediate suspension or immediate conditions should be imposed on the practitioner's registration, it shall invite representations from the parties before considering and announcing whether it shall impose such order, together with its reasons for that decision; and

(p) the FTP Panel shall deal with any interim order in place in respect of the practitioner.

(9) At any stage before making its decision as to sanction or warning, the FTP Panel may adjourn for further information or reports to be obtained in order to assist it in exercising its functions.

Evidence

34 (1) ………………the Committee or a Panel may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law.

(9) In relation to proceedings before the Committee or a FTP Panel, unless otherwise agreed between the parties or directed by a Case Manager, each party shall not less than 28 days before the date of a hearing—

(a) provide to the other party a list of every document which he proposes to introduce as evidence;

(b) provide to the other party a copy of every document listed in paragraph (a) which the other...

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2 cases
  • General Medical Council v Olufemi Adeyinka Adeogba
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 March 2016
    ...to obtain the evidence in time for the hearing and had shown no special reason why that failure should be overlooked." 30 In TZ v General Medical Council [2015] EWHC 1001, Gilbart J analysed Muscat and may be thought to have elevated the absence of a review mechanism as itself justifying de......
  • Harry Nduka v General Medical Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 15 June 2017
    ...and ruled that it had no power under the 2004 Rules to re-open the fact-finding stage after handing its decision, referring to TZ v General Medical Council [2015] EWHC 1001 (Admin), per Gilbart J at [82]). The Tribunal had announced its findings of fact, the first stage under rule 17(2)(j),......

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