Dr Luise Schodlok v General Medical Council [2013] EWHC 2280 | Fieldfisher
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Dr Luise Schodlok v General Medical Council [2013] EWHC 2280

This case concerned an appeal by Dr Luise Schodlock (S) against the determination of a Fitness to Practise Panel ("the Panel") of the Medical Practitioners Tribunal Service ("MPTS") to impose

This case concerned an appeal by Dr Luise Schodlock (S) against the determination of a Fitness to Practise Panel ("the Panel") of the Medical Practitioners Tribunal Service ("MPTS") to impose conditions on her registration.   

Whilst the Panel had found the majority of the charges against S not proved, allegations concerning her behaviour towards an Orthopaedic Technician (M) working in the Fracture Clinic were found proved. The Panel determined that four of its findings of fact amounted to serious misconduct which impaired S's fitness to practise and it was upon these findings that the sanction of conditions was based.   

S appealed against various procedural decisions made by the Panel, some of the Panel's factual findings, the Panel's finding of impairment and the sanction imposed.

Procedural decisions made by the Panel

S challenged the Panel's decisions: (i) to permit M to give evidence by videolink; (ii) to permit M to refer, when giving evidence, to a letter he had written at the time of the events to S's employing Trust; (iii) to restrict the time given to S for cross examination of M; and (iv) not to admit in evidence the letter of complaint prior to S's cross examination of M.  S did not pursue (iv) at the appeal hearing.

In considering the Appeal, the High Court held that, whilst the GMC's Fitness to Practise Rules 2004 did not make specific provision for video link evidence other than for vulnerable witnesses, it was clear that rule 34 (relating to the evidence to be admitted by the Panel) was couched in sufficiently wide terms as to allow evidence to be given by video link. In addition, the Court noted that S had not objected at the time of the hearing and that the Panel had received appropriate advice from the Legal Assessor. S was able to cross examine M over the videolink and no prejudice to her was identified. The Court therefore dismissed this ground of appeal.

In respect of the letter written at the time of the events by M, the High Court noted that the letter had not previously been seen by S or the GMC  but that during the course of his evidence in chief, M had the letter  with and had referred to it. The Court considered that appropriate advice had been given by the Legal Advisor as to the permissibility of M refreshing his memory, namely that section 139 of the Criminal Justice Act 2003 permits a witness to refresh his memory from a document made or verified by him nearer the time if he states in his evidence that the document records his recollection of the matter at the earlier time and that his recollection is likely to have been significantly better at that time. The Court held that the Panel had appropriately exercised its discretion to allow M to refresh his memory and dismissed this ground of appeal.

Finally, the Court noted that, in relation to the restriction of time for cross examination of M by S, the Panel was entitled to exercise its case management powers to control its own proceedings.  In any event, having reviewed the transcript, the Court determined that the Panel did allow S the opportunity to ask any question, and that S indicated that she had asked all the questions she sought to ask.

The Panel's findings of fact and impairment 

In relation to the Panel's findings of fact, the High Court made clear that it was only the four findings of fact that led to a finding of serious misconduct, and the decisions which flowed from them, that could properly be the subject of the appeal brought under section 40 of the Medical Act 1983. In respect of those findings, the Court recognised that the Panel had the opportunity of observing the appellant over a 40 day hearing and of hearing evidence from M and other witnesses, and that it should be slow to interfere with its findings.  It held that there was no material error by the Panel which would warrant interference by the Court with those findings. 

The Court concluded that there was also no separate basis for interfering with the Panel's finding of impairment.  S argued that the Panel failed to have regard to the background circumstances of the hospital at the time of the misconduct and her positive testimonial evidence.  The Court held however that the Panel's determination demonstrated that it was both aware of the background circumstances, and of S's previous good character, and took account of these matters.

The sanction imposed by the Panel

The Court considered that the sanction imposed by the Panel was, in fact, lenient in the circumstances and found no basis for interfering with it.  It held that the Panel took account of the GMC's Indicative Sanctions Guidance and reached a conclusion that was open to it.  As a result, the appeal was dismissed.