Jasinarachchi v General Medical Council [2014] EWHC 3570, Stewart JIn this case, the High Court took an interesting approach to the test for adducing fresh evidence, holding that if justice requires
Jasinarachchi v General Medical Council [2014] EWHC 3570, Stewart J
In this case, the High Court took an interesting approach to the test for adducing fresh evidence, holding that if justice requires that the fresh evidence should be adduced, it is not necessary for all three of the principles in Ladd v Marshall to be met.
Facts
The appellant doctor ("J") was working as a first year trainee GP on 2 March 2012. His GP supervisor gave him the task of completing a Death Certificate and Cremation 4 Certificate for Patient A. J was under numerous time constraints, including seeing other patients and flying to Australia that evening. Despite being unambiguously advised by the crematorium that he was required to attend, J did not and falsely stated on the Cremation Certificate that he had seen patient A on that day.
Upon realising the certificate was incorrect, the cremation was delayed. When J returned to the UK, the family accepted his apology and expressed that they did not wish to take the matter any further. In April 2012, the East Midlands Deanery referred the case to the General Medical Council ("GMC").
During a hearing in March 2014, the Fitness to Practise Panel ("FTPP") of the GMC concluded that A had committed misconduct in relation to patient A and his fitness to practise was impaired. As a sanction, the FTPP suspended J's registration for a period of six months.
Grounds of Appeal
The first, unsuccessful, ground of appeal was that the FTPP imposed an excessive and disproportionate sanction. The High Court rejected the submission, stating that it was for the FTPP to assess the weight of such factors (for example the family's wishes).
The second, successful ground of appeal hinged on the fact that new matters had come to light concerning the practical consequences of the suspension. Immediately after the sanction was imposed, J contacted his employer. He was shocked to find out that the effects would be that his National Training Number would be removed and consequently, his current training will cease (with no certainty that he will be able to enter an alternative programme once the suspension has been served). J accepted that he was seeking to adduce fresh evidence in the form of a letter from the GP Dean of his employer supporting his position.
Judgment
The High Court considered the principles in Ladd v Marshall [1954] EWCA Civ 1, namely that:
Stewart J distinguished the case from Abrahaem v GMC [2008] EWHC 183 on the grounds that the fresh evidence was contested and required an adjournment of the proceeding, unlike J's fresh evidence in the present case.
The first principle in Ladd v Marshall was not met because the information put forward by J could have been obtained with reasonable diligence. J conceded that those acting for him were aware that suspension was likely. On the second principle, Stewart J considered that there was a real risk that J's GP training would end if he is suspended. Furthermore, the High Court stated that the fresh evidence may be an important influence on the result of the case, although it is not necessarily decisive. Lastly, Stewart J believed the evidence to be credible.
Despite the first principle not being met, Stewart J took a rounded view of the circumstances and held that "justice requires the fresh evidence to be admitted and for the matter to be considered by the FTPP". The Court ordered, and the parties agreed, that a hearing will take place which takes into account the fresh evidence so as to decide what, if any, difference it makes to sanctions. The limited disciplinary process was also a relevant factor in deciding whether to allow the fresh evidence.
Discussion
This case is one of a number of recent professional GMC appeals where the courts have considered the extent to which the Ladd v Marshall principles should be strictly applied. As Stewart J's judgment in the present case suggests, if an overly restrictive application of those principles would be unjust, the court will be willing to depart from them if the individual circumstances of a case require. The case was affirmed in TZ v General Medical Council [2015] EWHC 1001 (Admin) in which Gilbart J commented that "the approach of no longer regarding Ladd v Marshall as setting tests which are solely determinative of an application to adduce fresh evidence, is again emphasised."
In this case, the High Court took an interesting approach to the test for adducing fresh evidence, holding that if justice requires that the fresh evidence should be adduced, it is not necessary for all three of the principles in Ladd v Marshall to be met.
Facts
The appellant doctor ("J") was working as a first year trainee GP on 2 March 2012. His GP supervisor gave him the task of completing a Death Certificate and Cremation 4 Certificate for Patient A. J was under numerous time constraints, including seeing other patients and flying to Australia that evening. Despite being unambiguously advised by the crematorium that he was required to attend, J did not and falsely stated on the Cremation Certificate that he had seen patient A on that day.
Upon realising the certificate was incorrect, the cremation was delayed. When J returned to the UK, the family accepted his apology and expressed that they did not wish to take the matter any further. In April 2012, the East Midlands Deanery referred the case to the General Medical Council ("GMC").
During a hearing in March 2014, the Fitness to Practise Panel ("FTPP") of the GMC concluded that A had committed misconduct in relation to patient A and his fitness to practise was impaired. As a sanction, the FTPP suspended J's registration for a period of six months.
Grounds of Appeal
The first, unsuccessful, ground of appeal was that the FTPP imposed an excessive and disproportionate sanction. The High Court rejected the submission, stating that it was for the FTPP to assess the weight of such factors (for example the family's wishes).
The second, successful ground of appeal hinged on the fact that new matters had come to light concerning the practical consequences of the suspension. Immediately after the sanction was imposed, J contacted his employer. He was shocked to find out that the effects would be that his National Training Number would be removed and consequently, his current training will cease (with no certainty that he will be able to enter an alternative programme once the suspension has been served). J accepted that he was seeking to adduce fresh evidence in the form of a letter from the GP Dean of his employer supporting his position.
Judgment
The High Court considered the principles in Ladd v Marshall [1954] EWCA Civ 1, namely that:
- The evidence could not have been obtained with reasonable diligence for use at trial;
- The evidence must be such, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and
- The evidence must be such as is presumably to be believed, it must be apparently credible, though it need not be incontrovertible.
Stewart J distinguished the case from Abrahaem v GMC [2008] EWHC 183 on the grounds that the fresh evidence was contested and required an adjournment of the proceeding, unlike J's fresh evidence in the present case.
The first principle in Ladd v Marshall was not met because the information put forward by J could have been obtained with reasonable diligence. J conceded that those acting for him were aware that suspension was likely. On the second principle, Stewart J considered that there was a real risk that J's GP training would end if he is suspended. Furthermore, the High Court stated that the fresh evidence may be an important influence on the result of the case, although it is not necessarily decisive. Lastly, Stewart J believed the evidence to be credible.
Despite the first principle not being met, Stewart J took a rounded view of the circumstances and held that "justice requires the fresh evidence to be admitted and for the matter to be considered by the FTPP". The Court ordered, and the parties agreed, that a hearing will take place which takes into account the fresh evidence so as to decide what, if any, difference it makes to sanctions. The limited disciplinary process was also a relevant factor in deciding whether to allow the fresh evidence.
Discussion
This case is one of a number of recent professional GMC appeals where the courts have considered the extent to which the Ladd v Marshall principles should be strictly applied. As Stewart J's judgment in the present case suggests, if an overly restrictive application of those principles would be unjust, the court will be willing to depart from them if the individual circumstances of a case require. The case was affirmed in TZ v General Medical Council [2015] EWHC 1001 (Admin) in which Gilbart J commented that "the approach of no longer regarding Ladd v Marshall as setting tests which are solely determinative of an application to adduce fresh evidence, is again emphasised."