The Court of Appeal has handed down their judgment in Sanusi v General Medical Council [2019] EWCA Civ 1172, considering whether a Medical Practitioners Tribunal (MPT) should adjourn between its decision on impairment and sanction in the absence of the accused.
This case confirms that there is no obligation to adjourn prior to considering sanction. It is also a reminder to regulators to ensure they have undertaken a reasonable review of relevant material and a reminder to registrants of the consequences of being voluntarily absent from proceedings.
Background
Dr Sanusi, a registrar, was referred to the GMC by two NHS Trusts as a result of clinical care incidents, and for not giving full details of his fitness to practice history and the reason for leaving his previous role when applying for a new role.
Prior to the MPT hearing, Dr Sanusi submitted a witness statement explaining that he could not afford legal representation and he could not attend himself due to limited days of absence allowed on his GP training.
The MPT considered it fair and in the public interest to proceed, drawing no adverse inference from his absence. The MPT therefore went ahead and concluded:
- In relation to the clinical care allegations, that each of the three failures to provide good clinical care to patients individually amounted to serious misconduct;
- In relation to the application allegations, that Dr Sanusi had persuaded himself and believed the local investigation into the clinical care allegations was just a "formality" and mainly down to personality clashes. Whilst in reality this was not the case, it could not amount to serious misconduct. However failure to disclose his dismissal and stating that he had resigned was dishonest and amounted to serious misconduct; and
- As a result, his fitness to practise was impaired.
Sanction was then considered. The MPT decided that, in the circumstances, "erasure was the only sufficient sanction which would protect patients, maintain public confidence in the profession and send out a clear message to Dr Sanusi, the profession and the public that his misconduct constituted behaviour unbefitting of a registered doctor".
The appeal
Dr Sanusi appealed to the High Court against the MPT’s decision in relation to sanction only on the basis that:
- the MPT should have considered adjourning at the sanction stage and/or ‘pausing’ to allow Dr Sanusi to produce further evidence (in person or via documentary evidence); and
- the failure to take this step meant that the hearing proceeded without any further material directed to remediation, insight or remorse.
The appeal was dismissed by Kerr J. Following GMC v Adeogba, he held that, in the context of the disciplinary jurisdiction exercised by MPT it will rarely be unfair for a MPT to proceed straight to sanction, rather than pausing to invite attendance from a registrant who had, up to that point, voluntarily absented himself.
He did note, however, that in this case, many documents provided by Dr Sanusi were not sent by the GMC to the MPT. Kerr J found this material was therefore not available to the MPT when it later evaluated the available sanctions and considered any mitigating circumstances. Although this was a procedural unfairness, on the facts of this particular case, the failure to ensure that the MPT had sight of all material was not reasonably capable of affecting the outcome.
Court of Appeal Judgment
Dr Sanusi successfully sought permission from the Court of Appeal to appeal the decision on two grounds. These were to consider:
- whether the MPT should have notified him of its findings of misconduct and given him an opportunity to make submissions before proceeding to sanction;
- whether the Judge was right to find that the process by which the sanction decision was reached was not rendered unfair by the GMC's failure to provide the MPT with Dr Sanusi's mitigation evidence.
Lady Justice Simler dismissed the appeal, concluding that there was no obligation on the MPT to adjourn immediately before considering sanction and there was nothing in these particular circumstances making the MPT's decision not to do so wrong. Although there was a procedural irregularity in the missing material, there was still "no realistic possibility that the missing materials might have led the MPT to a different sanction outcome. Erasure was inevitable in light of the Tribunals earlier findings, which have not been challenged".
Ground one
Simler confirmed Kerr's approach in following GMC v Adeogba which approved the use of criteria governing the continuation of a criminal trial in the absence of a defendant, as a useful starting point in a regulatory context. For example, the MPT should consider the context and circumstances leading to the defendant being absent and the general public interest. However, the criminal analogy could not be taken too far "given the important regulatory objective in play" and that there is no means to enforce attendance in a regulatory setting (although there is a burden on medical practitioners to engage with regulators).
Simler noted that Adeogba requires MPTs to "be satisfied that all reasonable efforts have been taken to notify the practitioner of the hearing" but once satisfied, it is discretional whether or not to proceed. However she acknowledged that the position is likely to be different where a registrant, who has otherwise engaged fully, is taken ill or where there is another compelling reason justifying an adjournment.
Ground two
Although Simler was in no doubt that there was a procedural failing and there is an obligation to take reasonable steps to ensure all material was before the MPT, she confirmed that this obligation is not unlimited and extends only to reasonable searches for material that is objectively viewed as relevant. It was reconfirmed that, on the facts of this case, there was no realistic prospect that the missing materials could have led to a different sanction.
Going forward
This case is useful for regulators in confirming the approach in GMC v Adeogba and that an adjournment before sanction is unlikely to be considered appropriate when a registrant is voluntary absent from proceedings. This case serves as a reminder of the obligation to search for, and to provide to the MPT, material which could objectively be viewed as relevant to an investigation.
For registrants, this case is a warning of the consequences of being voluntarily absent from proceedings and the importance of engaging with regulators and the process throughout.
Author: Alex Beresford