Adeogba v General Medical Council [2014] EWHC 3872 (Admin)A recently published judgment of the Administrative Court dealt with the interesting issue of whether the decision of a disciplinary panel to
Adeogba v General Medical Council [2014] EWHC 3872 (Admin)
A recently published judgment of the Administrative Court dealt with the interesting issue of whether the decision of a disciplinary panel to proceed in the absence of a doctor, and their ultimate decision to remove the doctor from the medical register, should be quashed and reconsidered in circumstances where the doctor had not engaged prior to the hearing but subsequently re-engaged upon receiving notice of the hearing after it had taken place.
Background
Complaints had been received by the GMC from six patients regarding the procedures and care undertaken by Dr Adeogba, a plastic surgeon. This resulted in an Interim Orders Panel hearing in February 2012, at which the doctor was present but not represented. The IOP decided to suspend Dr Adeogba's registration for 18 months. Following this decision Dr Adeogba decided to return to Nigeria, where he was born, but did not inform the GMC of this.
In the course of preparations for the substantive hearing, various emails were sent to Dr Adeogba by the GMC regarding case management matters but no response received. The GMC also communicated with his registered contact address in Germany. In accordance with the GMC's rules, the doctor was given 28 days' notice of the hearing through recorded delivery letter to this address and by email. The letter was subsequently returned as undeliverable. No response was received from Dr Adeogba.
The panel hearing went ahead and on the first day, after hearing submissions from the GMC on efforts made to serve notice and the reasons for proceeding in the doctor's absence, the Panel determined that the hearing should proceed. The oral reasoning for this decision was that "he would be unlikely to cooperate should we adjourn and that it is in the public interest to continue". More detailed reasons were given in a final written determination.
At the conclusion of the hearing in December 2013, the doctor's fitness to practise was found to be impaired and he was struck off the medical register. In its decision on impairment the Panel noted that there was no evidence of any insight from the doctor and that it was evident that he had not engaged in the process, which left the Panel with no alternative conclusion.
Dr Adeogba subsequently found out about this decision from a former colleague within the 28 day period in which he was able to bring an appeal, which he did. Dr Adeogba stated that he had not checked his emails until after the hearing, so had not been aware that it was happening, and that the Panel should not have proceeded in his absence in the circumstances. Dr Adeogba also challenged the substantive findings and claimed that shortcomings in the evidence may have misled the Panel.
The Appeal
The Court was required to undertake a re-hearing, rather than a review, on appeal. It considered the extent to which, if at all, fresh evidence could be considered on appeal. The Court decided that the primary consideration when determining the appeal was fairness and that where a party had not had previous opportunity to put forward evidence, rather than having the opportunity and failing to do so, it was fair to allow new evidence as part of the re-hearing.
The Court went on to consider the decision to proceed in the doctor's absence and concluded that the decision to proceed in absence was wrong. The judgment set out a number of reasons for this conclusion, including:
The Court concluded that if the Panel had been aware of the additional material and information that had been made available to the Court, it would not have exercised its discretion to proceed in the absence of the practitioner, or that if it had done so this would have been irrational. The Court remitted the matter back to the GMC for a fresh fitness to practise hearing.
The Court was clear that this case does not establish a principle that a doctor may ignore fitness to practise proceedings and then expect a Panel's decision to be set aside on appeal. However the case does demonstrate that careful consideration should be given to proceeding in the absence of a practitioner and that the appropriate decision will depend upon the set of circumstances in a particular case. It suggests that regulators will not be able to justify proceeding in the absence of the practitioner purely by undertaking a "box ticking" exercise to satisfy rules, but must make concerted, reasonable efforts to notify a practitioner of the hearing before proceeding in their absence. It seems clear that this may involve additional measures being taken where it would be reasonable to believe that the practitioner may be overseas for an extended period.
A recently published judgment of the Administrative Court dealt with the interesting issue of whether the decision of a disciplinary panel to proceed in the absence of a doctor, and their ultimate decision to remove the doctor from the medical register, should be quashed and reconsidered in circumstances where the doctor had not engaged prior to the hearing but subsequently re-engaged upon receiving notice of the hearing after it had taken place.
Background
Complaints had been received by the GMC from six patients regarding the procedures and care undertaken by Dr Adeogba, a plastic surgeon. This resulted in an Interim Orders Panel hearing in February 2012, at which the doctor was present but not represented. The IOP decided to suspend Dr Adeogba's registration for 18 months. Following this decision Dr Adeogba decided to return to Nigeria, where he was born, but did not inform the GMC of this.
In the course of preparations for the substantive hearing, various emails were sent to Dr Adeogba by the GMC regarding case management matters but no response received. The GMC also communicated with his registered contact address in Germany. In accordance with the GMC's rules, the doctor was given 28 days' notice of the hearing through recorded delivery letter to this address and by email. The letter was subsequently returned as undeliverable. No response was received from Dr Adeogba.
The panel hearing went ahead and on the first day, after hearing submissions from the GMC on efforts made to serve notice and the reasons for proceeding in the doctor's absence, the Panel determined that the hearing should proceed. The oral reasoning for this decision was that "he would be unlikely to cooperate should we adjourn and that it is in the public interest to continue". More detailed reasons were given in a final written determination.
At the conclusion of the hearing in December 2013, the doctor's fitness to practise was found to be impaired and he was struck off the medical register. In its decision on impairment the Panel noted that there was no evidence of any insight from the doctor and that it was evident that he had not engaged in the process, which left the Panel with no alternative conclusion.
Dr Adeogba subsequently found out about this decision from a former colleague within the 28 day period in which he was able to bring an appeal, which he did. Dr Adeogba stated that he had not checked his emails until after the hearing, so had not been aware that it was happening, and that the Panel should not have proceeded in his absence in the circumstances. Dr Adeogba also challenged the substantive findings and claimed that shortcomings in the evidence may have misled the Panel.
The Appeal
The Court was required to undertake a re-hearing, rather than a review, on appeal. It considered the extent to which, if at all, fresh evidence could be considered on appeal. The Court decided that the primary consideration when determining the appeal was fairness and that where a party had not had previous opportunity to put forward evidence, rather than having the opportunity and failing to do so, it was fair to allow new evidence as part of the re-hearing.
The Court went on to consider the decision to proceed in the doctor's absence and concluded that the decision to proceed in absence was wrong. The judgment set out a number of reasons for this conclusion, including:
- The fact that the Appellant should have made himself aware of a likely fitness to practise hearing close to the expiry of his period of suspension was "immaterial", because the question for the panel was whether an effective and fair hearing could be achieved;
- The evidential input of the doctor was likely to be significant because of the nature of the charges, both for findings of fact and impairment, therefore his absence would be likely to be highly prejudicial;
- No live evidence aside from the GMC expert had been scheduled for the hearing, and this was the first hearing that had been scheduled. Therefore an adjournment was unlikely to be highly disruptive or inconvenient;
- The potential destruction of the livelihood of a doctor for at least five years in the event of a sanction of erasure, meant that the doctor's interests significantly outweighed the public interest of expediency, especially where no witnesses were inconvenienced;
- A doctor who was not a resident in this country but derived his livelihood from practice in the UK may have no reason to remain in the country following suspension. Therefore it was not unreasonable to consider that he may have returned to his country of birth. Other steps should have been considered before ruling out adjournment, such as contacting former colleagues or making enquiries with overseas registration authorities;
- The hearing had been listed for twenty days, but ran to little more than three days, with limited scrutiny of the material or testing of the evidence, which did not give an impression of fairness;
- The Panel appeared to have misinformed itself as to whether the Appellant was aware of the hearing. The Panel had concluded that the Appellant had "voluntarily waived his right to attend", but the Court found that there was no evidence that the Appellant was aware of the hearing. To the contrary, the Court found that there was credible evidence that the Appellant could not have been aware of the hearing date until he had accessed his emails after it had happened.
The Court concluded that if the Panel had been aware of the additional material and information that had been made available to the Court, it would not have exercised its discretion to proceed in the absence of the practitioner, or that if it had done so this would have been irrational. The Court remitted the matter back to the GMC for a fresh fitness to practise hearing.
The Court was clear that this case does not establish a principle that a doctor may ignore fitness to practise proceedings and then expect a Panel's decision to be set aside on appeal. However the case does demonstrate that careful consideration should be given to proceeding in the absence of a practitioner and that the appropriate decision will depend upon the set of circumstances in a particular case. It suggests that regulators will not be able to justify proceeding in the absence of the practitioner purely by undertaking a "box ticking" exercise to satisfy rules, but must make concerted, reasonable efforts to notify a practitioner of the hearing before proceeding in their absence. It seems clear that this may involve additional measures being taken where it would be reasonable to believe that the practitioner may be overseas for an extended period.