This interim application for judicial review relates to two decisions of the Fitness to Practise Panel ("FTPP"), of the Medical Practitioner's Tribunal Service of the General Medical Council, and
This interim application for judicial review relates to two decisions of the Fitness to Practise Panel ("FTPP"), of the Medical Practitioner's Tribunal Service of the General Medical Council, and serves as a useful reminder for regulators that judgments in one forum are not necessarily conclusive in another, and that an application for judicial review can be brought in rare but appropriate circumstances prior to the substantive hearing in order to cure any defects that may otherwise have not been remedied.
Facts
S served as an expert witness in six cases of alleged non-accidental head injury to infants; "shaken baby syndrome" between 2006 and 2010. She gave evidence as an expert consultant paediatric neuropathologist and FTP proceedings were brought against her alleging that she had misled the courts. The FTPP concluded that the six judgments from the cases, five of which had been brought in the High Court, could be admitted in evidence subject to necessary redactions.
S challenged the admissibility of the judgments at the first stage of the FTPP proceedings: namely the findings of fact in relation to the allegations. She contended that they should not have been admitted because she herself had not been a party to them and that they were irrelevant. Instead, the FTPP concluded that the inclusion of the judgments was a proportionate means of providing context to the cases as opposed to opting to rehear the entirety of the cases, which would have been very time consuming. It rejected S's claim and considered that the probative value of the judgments outweighed any potential prejudice for her.
As a result of the FTPP's decision, S brought an interim judicial review application to challenge the admissibility of the various judgments.
Judicial Review
In his judgment, Ouseley J emphasised that the role of the disciplinary tribunal is to be the decision maker on the issues and evidence before it; and it should not just adopt the decision of another body as a substitute for reaching its own decision on the evidence before it. He held that the evidence in this instance was admissible. In S's case, the issues before the FTPP were not the same as those which were before the courts, and the evidence and the parties were different. Ouseley J cautioned that there may be circumstances where it would be unfair for the judgments from another forum to be a significant influence on the mind of the tribunal on the crucial issues before it for those same reasons.
Ousley J granted the application for judicial review on the basis that it related to the admission of what was said to be evidence crucial to the GMC case and to the particularisations of the allegations in a way which was said to be seriously misconceived and unfair, although he used the opportunity to state that as a general principle, proceedings to challenge decisions of a tribunal should await the conclusion of the hearing and should usually be made by way of statutory appeal; "after all, judicial review is a remedy of last resort".
Discussion
This case is a useful reminder that judgments in one forum are not necessarily conclusive or even admissible evidence in another. It is for a regulator's panel to find for itself the facts necessary to reach a conclusion on the quality of expert evidence given to it. The risk of allowing decisions of others (even High Court judges) to act as a substitute for the FTPP determining the allegation had to be avoided.
Second, this case serves as a good illustration of when an interim judicial review application can be brought prior to the substantive hearing in order to remedy any defects that might otherwise not be remedied. S's substantive fitness to practise hearing is likely to be lengthy and complex, concerning a significant number of allegations of misconduct. Ouseley J granted the judicial review on the basis that if the defects in the allegations were not remedied in advance, those proceedings may have to be repeated, leading to a significant waste of time, money, resources of both sides, and significant prejudice to S (who would have serious adverse findings hanging over her for years). It should be remembered that an interim judicial review can therefore be an appropriate and proportionate means to remedy any potential injustice at an early stage, or which would probably not be remedied during the process of the hearing and which has the potential to cause real harm, if not remedied then.
Facts
S served as an expert witness in six cases of alleged non-accidental head injury to infants; "shaken baby syndrome" between 2006 and 2010. She gave evidence as an expert consultant paediatric neuropathologist and FTP proceedings were brought against her alleging that she had misled the courts. The FTPP concluded that the six judgments from the cases, five of which had been brought in the High Court, could be admitted in evidence subject to necessary redactions.
S challenged the admissibility of the judgments at the first stage of the FTPP proceedings: namely the findings of fact in relation to the allegations. She contended that they should not have been admitted because she herself had not been a party to them and that they were irrelevant. Instead, the FTPP concluded that the inclusion of the judgments was a proportionate means of providing context to the cases as opposed to opting to rehear the entirety of the cases, which would have been very time consuming. It rejected S's claim and considered that the probative value of the judgments outweighed any potential prejudice for her.
As a result of the FTPP's decision, S brought an interim judicial review application to challenge the admissibility of the various judgments.
Judicial Review
In his judgment, Ouseley J emphasised that the role of the disciplinary tribunal is to be the decision maker on the issues and evidence before it; and it should not just adopt the decision of another body as a substitute for reaching its own decision on the evidence before it. He held that the evidence in this instance was admissible. In S's case, the issues before the FTPP were not the same as those which were before the courts, and the evidence and the parties were different. Ouseley J cautioned that there may be circumstances where it would be unfair for the judgments from another forum to be a significant influence on the mind of the tribunal on the crucial issues before it for those same reasons.
Ousley J granted the application for judicial review on the basis that it related to the admission of what was said to be evidence crucial to the GMC case and to the particularisations of the allegations in a way which was said to be seriously misconceived and unfair, although he used the opportunity to state that as a general principle, proceedings to challenge decisions of a tribunal should await the conclusion of the hearing and should usually be made by way of statutory appeal; "after all, judicial review is a remedy of last resort".
Discussion
This case is a useful reminder that judgments in one forum are not necessarily conclusive or even admissible evidence in another. It is for a regulator's panel to find for itself the facts necessary to reach a conclusion on the quality of expert evidence given to it. The risk of allowing decisions of others (even High Court judges) to act as a substitute for the FTPP determining the allegation had to be avoided.
Second, this case serves as a good illustration of when an interim judicial review application can be brought prior to the substantive hearing in order to remedy any defects that might otherwise not be remedied. S's substantive fitness to practise hearing is likely to be lengthy and complex, concerning a significant number of allegations of misconduct. Ouseley J granted the judicial review on the basis that if the defects in the allegations were not remedied in advance, those proceedings may have to be repeated, leading to a significant waste of time, money, resources of both sides, and significant prejudice to S (who would have serious adverse findings hanging over her for years). It should be remembered that an interim judicial review can therefore be an appropriate and proportionate means to remedy any potential injustice at an early stage, or which would probably not be remedied during the process of the hearing and which has the potential to cause real harm, if not remedied then.