In this recent appeal of a decision of the General Medical Council's ("GMC") Medical Practitioners Tribunal Service ("MPTS"), the Court was faced with an unusual ground of appeal that negligent legal
In this recent appeal of a decision of the General Medical Council's ("GMC") Medical Practitioners Tribunal Service ("MPTS"), the Court was faced with an unusual ground of appeal that negligent legal advice received and followed by the registrant could have constituted procedural unfairness, rendering the MPTS' decision unjust. As the Court considered in this case, an appeal on this basis may succeed where the advice in issue is considered unreasonable (to the standards of Wednesbury) and has led to an unfair hearing. The Court found that only the first ground was satisfied here, and rejected the appeal, but the case serves as an interesting discussion and reminder of the established position on this ground of appeal.
The appellant doctor ("B") was struck off the GMC's register in November 2013 after a panel of the MPTS found that he had falsified entries in his trainee assessment portfolio, and that this had been dishonest.
At the hearing, B had admitted to the facts of the allegation but denied that he had been dishonest. After the panel had found the charges proven (including dishonesty), but before it heard submissions on sanction, B admitted to acting dishonestly to the panel. He stated that this had been his original intention but that he was subsequently advised by his legal team to admit the facts, but deny dishonesty. The panel considered B's admission, and were of the view that this showed that his "insight may be developed to a slightly greater extent than previously thought", but "not so fully that it fundamentally alters the very serious concerns" regarding his misconduct. They proceeded to determine that he should be erased from the register.
On appeal, B was granted permission to rely on fresh evidence and filed a further witness statement in which he described the "negligent" advice he had received from his legal representatives and how this had influenced his decision to initially deny the charge of dishonesty. He claimed that by the time he admitted dishonesty, the panel had formed a negative view of him due to his failure to accept that he had acted dishonestly at an earlier stage in the hearing. B argued that the advice he received, and followed, constituted procedural unfairness in the proceedings, leading to an unjust decision by the panel.
Citing Luthra v GMC [2013] EWHC 240 (Admin) and Civil Procedure Rule 52.11(3), the Court considered that it could only overturn the Panel's decision where this was either wrong or unjust because of a serious procedural or other irregularity in proceedings.
The Court noted that there was "very little authority" dealing with appeals brought on the basis of incompetent representation. B relied upon R (Aston) v Nursing and Midwifery Council [2004] EWHC 2368 (Admin), which stated that an appeal on the basis of incompetent representation may be allowed where:
B argued that the advice he had received, and adopted, had "prejudiced his best point", namely that he regretted his actions and had full insight into his wrongdoing. He stated that this may, it followed, have convinced the panel that there was no risk of B being dishonest again, and consequently that he posed no risk to the public in the future.
In reply, the GMC argued that, even if B was given negligent advice, he was not obliged to accept advice which was contrary to his own case, nor had he been precluded from giving the evidence he wished to give at the hearing; it remained that B ultimately had been able to inform the panel that his decision to contest the allegation of dishonesty was only made because of the legal advice he had received, in any event.
The Court declared that it was "somewhat uncomfortable" with B's ground of appeal. It noted that where this is raised in criminal proceedings, privilege is usually waived and a statement is obtained from the advocate concerned to prove what they actually advised their client. B had not done this here, though the Court did note that before the hearing B had instructed his solicitor that he intended to plead guilty to all charges, including dishonesty. The Court accepted that B's assertion, that he had been advised to deny dishonesty, was accurate; there was "no other evidence to gainsay it".
The Court considered that, if B had been advised to dispute the charge of dishonesty, then this would constitute negligent advice and was unreasonable to the standards of Wednesbury. The issue which remained was whether the consequences of this advice led to the trial being unfairly prejudiced and to the panel reaching an unjust conclusion. The Court agreed with B that his decision to contest, rather than admit, dishonesty did not give the panel a "good impression" of him but noted that the panel had considered and accepted his subsequent admission, reserving that it was still not convinced that B had demonstrated full insight into his conduct. The Court was of the view that, in light of the totality of B's evidence, the panel was entitled to conclude that B had "less than full insight" into the seriousness of his actions, notwithstanding his later submission.
The Court otherwise considered that the panel had "gone to great lengths to investigate this case thoroughly", and deferred to the panel's verdict on sanction which it was entitled to reach (adding that it was possible that another panel could have reasonably reached a decision to suspend B). B's appeal was, therefore, dismissed.
The appellant doctor ("B") was struck off the GMC's register in November 2013 after a panel of the MPTS found that he had falsified entries in his trainee assessment portfolio, and that this had been dishonest.
At the hearing, B had admitted to the facts of the allegation but denied that he had been dishonest. After the panel had found the charges proven (including dishonesty), but before it heard submissions on sanction, B admitted to acting dishonestly to the panel. He stated that this had been his original intention but that he was subsequently advised by his legal team to admit the facts, but deny dishonesty. The panel considered B's admission, and were of the view that this showed that his "insight may be developed to a slightly greater extent than previously thought", but "not so fully that it fundamentally alters the very serious concerns" regarding his misconduct. They proceeded to determine that he should be erased from the register.
On appeal, B was granted permission to rely on fresh evidence and filed a further witness statement in which he described the "negligent" advice he had received from his legal representatives and how this had influenced his decision to initially deny the charge of dishonesty. He claimed that by the time he admitted dishonesty, the panel had formed a negative view of him due to his failure to accept that he had acted dishonestly at an earlier stage in the hearing. B argued that the advice he received, and followed, constituted procedural unfairness in the proceedings, leading to an unjust decision by the panel.
Citing Luthra v GMC [2013] EWHC 240 (Admin) and Civil Procedure Rule 52.11(3), the Court considered that it could only overturn the Panel's decision where this was either wrong or unjust because of a serious procedural or other irregularity in proceedings.
The Court noted that there was "very little authority" dealing with appeals brought on the basis of incompetent representation. B relied upon R (Aston) v Nursing and Midwifery Council [2004] EWHC 2368 (Admin), which stated that an appeal on the basis of incompetent representation may be allowed where:
- the advice given was Wednesbury unreasonable (such that a representative took decisions or acted in a way in which no reasonable representative might act); and
- this adversely affected the fairness of the hearing, making the process unjust.
B argued that the advice he had received, and adopted, had "prejudiced his best point", namely that he regretted his actions and had full insight into his wrongdoing. He stated that this may, it followed, have convinced the panel that there was no risk of B being dishonest again, and consequently that he posed no risk to the public in the future.
In reply, the GMC argued that, even if B was given negligent advice, he was not obliged to accept advice which was contrary to his own case, nor had he been precluded from giving the evidence he wished to give at the hearing; it remained that B ultimately had been able to inform the panel that his decision to contest the allegation of dishonesty was only made because of the legal advice he had received, in any event.
The Court declared that it was "somewhat uncomfortable" with B's ground of appeal. It noted that where this is raised in criminal proceedings, privilege is usually waived and a statement is obtained from the advocate concerned to prove what they actually advised their client. B had not done this here, though the Court did note that before the hearing B had instructed his solicitor that he intended to plead guilty to all charges, including dishonesty. The Court accepted that B's assertion, that he had been advised to deny dishonesty, was accurate; there was "no other evidence to gainsay it".
The Court considered that, if B had been advised to dispute the charge of dishonesty, then this would constitute negligent advice and was unreasonable to the standards of Wednesbury. The issue which remained was whether the consequences of this advice led to the trial being unfairly prejudiced and to the panel reaching an unjust conclusion. The Court agreed with B that his decision to contest, rather than admit, dishonesty did not give the panel a "good impression" of him but noted that the panel had considered and accepted his subsequent admission, reserving that it was still not convinced that B had demonstrated full insight into his conduct. The Court was of the view that, in light of the totality of B's evidence, the panel was entitled to conclude that B had "less than full insight" into the seriousness of his actions, notwithstanding his later submission.
The Court otherwise considered that the panel had "gone to great lengths to investigate this case thoroughly", and deferred to the panel's verdict on sanction which it was entitled to reach (adding that it was possible that another panel could have reasonably reached a decision to suspend B). B's appeal was, therefore, dismissed.