TZ v GMC [2015] EWHC 1001 (Admin) - Mr Justice GilbartThe High Court upheld an appeal made against a decision not to admit further evidence which the doctor sought to have admitted just prior to a
TZ v GMC [2015] EWHC 1001 (Admin) - Mr Justice Gilbart
The High Court upheld an appeal made against a decision not to admit further evidence which the doctor sought to have admitted just prior to a Fitness to Practise Panel ('FTPP') announcing its decision. The court affirmed the principle that disciplinary tribunals have discretion to admit and consider new evidence before formally delivering their findings of fact if this is in the interests of justice.
Background:
The Appellant was working as a Locum Senior House Officer in an Emergency Department. The FTPP at the Medical Practitioner's Tribunal Service determined that the Appellant's fitness to practise was impaired by way of misconduct after upholding allegations that he had performed a vaginal examination on Patient A when it was not clinically indicated and had acted inappropriately towards her. The Appellant had previously been acquitted of criminal charges relating to the same incident.
Evidence:
During the course of proceedings, the Panel considered documentary evidence including hospital notes, a statement from the triage nurse, an expert report, CCTV footage and had heard evidence from the Appellant, the police, A and A's mother. They preferred A's account to that of the Appellant. The Health Care Assistant ('HCA') involved in A's hospital attendance and A's boyfriend at the time had been witnesses at the criminal trial (where the Appellant had been acquitted) but they were not called to give evidence as part of these proceedings. Their evidence did not form part of the case presented to the Panel.
Panel Decision:
After it had concluded hearing the evidence, the panel circulated a draft determination of findings to the parties on 28 April 2014, describing it as an "embargoed draft". On 1 May 2014, the Appellant wrote to the Assistant Registrar of the MPTS to say that the HCA and A's then boyfriend had not been called and that their evidence was highly relevant to the case. He supplied copies of the transcripts of their evidence at the criminal trial.
The hearing resumed on 24 June 2014 but the Appellant was not present and was not represented, though he sought an adjournment. Having heard representations on behalf of the GMC and advice from the Legal Assessor, the Panel confirmed that it had already concluded findings of facts in camera and its decisions and reasons had already been communicated to the parties. Therefore it concluded "it does not have the power to reopen the determination, and that even if it did have the power, it would not want to do so". The determination of facts on the issue of misconduct was formally handed down.
Appeal:
TZ appealed on a number of grounds, the most important of which relates to the Panel's refusal to admit the further evidence of the HCA and A's former boyfriend.
The court found that the rules did not prevent the Panel from exercising discretion in considering admission of new evidence before it had formally "announced" its decision. The judge found it difficult to accept that the Panel was only able to consider proposed typographical corrections to the draft and not conclusions reached on important factual issues. It highlighted that if there was injustice it could be challenged by way of appeal or judicial review but it was considered a waste of resources to do so where there was potential evidence showing that the conclusions reached by the Panel were wrong. The judge determined that after the factual decision was announced, the rules did not permit the admission of the evidence and the line should be drawn at this point. The circulation of draft decisions was acknowledged as common practice and the discretion of the Panel following this were explored through previous High Court judgements.
The court referred to the dicta in Muscat v Health Professions Council [2009] EWCA Civ 1090 and, more recently, Jasinarachchi v GMC [2014] EWHC 3570 which underline that it is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register, and that that is a factor which, in an appropriate case, can justify departure from the restrictive approach to fresh evidence in Ladd v Marshall [1954] EWCA Civ 1 . We have previously discussed Jasinarachchi and deviation from Ladd v Marshall here.
The judge went on to consider the Panel's position in exercising the discretion which was found to exist in this case. The judge considered the Health Care Assistant to have been an important witness in the case. Although the Appellant's representative had not called the witness, it was held that "this is a case where the potential for conflict between the Panel's findings and the evidence of the witness in question was such that there would have been a real risk of injustice if the Panel had refused to permit the calling of the evidence". The evidence of A's boyfriend at the time was also found to be admissible, although the court did not think that this was likely to be of similar probative value. The potential for conflict between the panel's findings and the HCA's evidence was such that there would have been a real risk of injustice had the panel refused to admit the evidence.
The direction of erasure was quashed and the case was remitted to the Registrar for referral to a new Fitness to Practise Panel for rehearing.
The High Court upheld an appeal made against a decision not to admit further evidence which the doctor sought to have admitted just prior to a Fitness to Practise Panel ('FTPP') announcing its decision. The court affirmed the principle that disciplinary tribunals have discretion to admit and consider new evidence before formally delivering their findings of fact if this is in the interests of justice.
Background:
The Appellant was working as a Locum Senior House Officer in an Emergency Department. The FTPP at the Medical Practitioner's Tribunal Service determined that the Appellant's fitness to practise was impaired by way of misconduct after upholding allegations that he had performed a vaginal examination on Patient A when it was not clinically indicated and had acted inappropriately towards her. The Appellant had previously been acquitted of criminal charges relating to the same incident.
Evidence:
During the course of proceedings, the Panel considered documentary evidence including hospital notes, a statement from the triage nurse, an expert report, CCTV footage and had heard evidence from the Appellant, the police, A and A's mother. They preferred A's account to that of the Appellant. The Health Care Assistant ('HCA') involved in A's hospital attendance and A's boyfriend at the time had been witnesses at the criminal trial (where the Appellant had been acquitted) but they were not called to give evidence as part of these proceedings. Their evidence did not form part of the case presented to the Panel.
Panel Decision:
After it had concluded hearing the evidence, the panel circulated a draft determination of findings to the parties on 28 April 2014, describing it as an "embargoed draft". On 1 May 2014, the Appellant wrote to the Assistant Registrar of the MPTS to say that the HCA and A's then boyfriend had not been called and that their evidence was highly relevant to the case. He supplied copies of the transcripts of their evidence at the criminal trial.
The hearing resumed on 24 June 2014 but the Appellant was not present and was not represented, though he sought an adjournment. Having heard representations on behalf of the GMC and advice from the Legal Assessor, the Panel confirmed that it had already concluded findings of facts in camera and its decisions and reasons had already been communicated to the parties. Therefore it concluded "it does not have the power to reopen the determination, and that even if it did have the power, it would not want to do so". The determination of facts on the issue of misconduct was formally handed down.
Appeal:
TZ appealed on a number of grounds, the most important of which relates to the Panel's refusal to admit the further evidence of the HCA and A's former boyfriend.
The court found that the rules did not prevent the Panel from exercising discretion in considering admission of new evidence before it had formally "announced" its decision. The judge found it difficult to accept that the Panel was only able to consider proposed typographical corrections to the draft and not conclusions reached on important factual issues. It highlighted that if there was injustice it could be challenged by way of appeal or judicial review but it was considered a waste of resources to do so where there was potential evidence showing that the conclusions reached by the Panel were wrong. The judge determined that after the factual decision was announced, the rules did not permit the admission of the evidence and the line should be drawn at this point. The circulation of draft decisions was acknowledged as common practice and the discretion of the Panel following this were explored through previous High Court judgements.
The court referred to the dicta in Muscat v Health Professions Council [2009] EWCA Civ 1090 and, more recently, Jasinarachchi v GMC [2014] EWHC 3570 which underline that it is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register, and that that is a factor which, in an appropriate case, can justify departure from the restrictive approach to fresh evidence in Ladd v Marshall [1954] EWCA Civ 1 . We have previously discussed Jasinarachchi and deviation from Ladd v Marshall here.
The judge went on to consider the Panel's position in exercising the discretion which was found to exist in this case. The judge considered the Health Care Assistant to have been an important witness in the case. Although the Appellant's representative had not called the witness, it was held that "this is a case where the potential for conflict between the Panel's findings and the evidence of the witness in question was such that there would have been a real risk of injustice if the Panel had refused to permit the calling of the evidence". The evidence of A's boyfriend at the time was also found to be admissible, although the court did not think that this was likely to be of similar probative value. The potential for conflict between the panel's findings and the HCA's evidence was such that there would have been a real risk of injustice had the panel refused to admit the evidence.
The direction of erasure was quashed and the case was remitted to the Registrar for referral to a new Fitness to Practise Panel for rehearing.