Kimmance v GMC [2016] EWHC 1808, Kerr J
A recent decision of the High Court provides some useful commentary on dishonesty, mitigation, attendance at disciplinary hearings, and how fitness to practise appeals should be presented in the High Court.
This case involved a doctor who had been erased from the medical register by a GMC Fitness to Practise Panel. The charges found against Dr Kimmance were that he had sent substantial amounts of offensive and threatening correspondence to a number of public bodies, relating to his separation from his daughter following the breakdown of a relationship. This behaviour persisted despite the doctor being made subject to two court orders under the Protection from Harassment Act 1997. The Panel erased him from the register in order to maintain public confidence in the profession, and to declare and uphold proper standards of conduct and behaviour.
Dr Kimmance appealed this decision on a number of grounds, including that the sanction was disproportionate and in part relying upon the fact that the misconduct was not in any way linked to the practice of medicine. The court rejected this argument, stating that Dr Kimmance need to conduct his private life in a manner befitting of a doctor and this meant behaving properly and not being blinded to the need to behave appropriately. The court held that the Panel had "no realistic alternative" to erasure, given the behaviour of Dr Kimmance and the lack of any evidence of insight or remediation.
In referring to insight, the court noted that "nine times out of ten, you cannot [demonstrate insight] if you do not turn up to the hearing." The judgment highlights the importance of advisors warning their clients of this and expressed concerns that many professionals may be unaware of the dangers of non-attendance (echoing another recent judgment by the same judge in the case of Burrows v GPhC). Kerr J went as far as to say that "in a regulatory jurisdiction, where issues of insight and remediation are very important, and where the conduct complained of is clearly very serious, non attendance of the hearing can come close to professional suicide."
The court also considered whether and the extent to which there was an irregularity in the fairness of the Panel's proceedings because references to dishonesty were made by Counsel to the GMC at the hearing, when no specific allegations of dishonesty had been made. The court agreed that references to dishonesty in these circumstances were irrelevant and amounted to an irregularity that was prejudicial to Dr Kimmance. However it concluded that the irregularity was not material on this occasion because a) the Panel was fully aware of the essence of the wrongdoing b) the Panel was reminded of the absence of allegations of dishonesty by the legal assessor and c) the charges found against Dr Kimmance were so serious that there could have been no realistic prospect of the appellant hoping to escape erasure.
Although this ground was not upheld, the judgment makes clear the importance of charging any intended allegations of dishonesty and avoiding references to dishonesty where no such charges are brought. The court clear that 'it was very far from being suggested that he had knowingly invented false stories about people, told lies or sought financial gain through dishonesty, and it is this classic sense of the term which ought to be, and ought only to be, the proper province of that use of language'. The failures in this case could have jeopardised the determination of the Panel in different circumstances.
Another ground of challenge was that a positive testimonial provided to the GMC by one of Dr Kimmance's line managers had not been presented to the Panel. The court agreed that it was wrong that this was not put before the Panel, but again held that although this was an irregularity, it was not material. The court considered that although the letter may have been a mitigating factor, it was "inconceivable" that its existence could have led to a different outcome. However in a more borderline case, where the charges found were not so serious, the failure to present evidence favourable to the absent doctor could have resulted in the Panel's decision being quashed.
In the concluding remarks the court gave a general warning about the court becoming overburdened with unnecessary material, citations and information. "The parties should not lodge thousands of pages of documents to cater for a chance of one in a thousand that the judge might ask to see one or two of them." It is a reminder to parties of the need to identify and focus on the key points of dispute in any case going before the court. While making no criticism of the lawyers in the case, Kerr J gave a clear steer to advocates who appear in such appeals in the future that:
'75 In the future, you do not need to cite Rashid and all those other familiar cases. You do not need to refer to CPR 52.11. You do not need to remind the court that it should defer to the specialist expertise of the tribunal below to the extent that the circumstances warrant. You do not need to cite cases that create no new principle, but merely illustrate existing ones.
76 You do not need authority for the proposition that factual determinations that turn on the assessment of the credibility of witnesses are virtually unassailable, a proposition that I was treated to in this case, even though no oral evidence was heard. Skeletons should be, if I may respectfully say so, short and to the point, and I hope in the future we will start to look at the merging of skeletons and pleadings, and an enforceable prohibition against the inclusion of unnecessary material.'