Nicholas-Pillai v General Medical Council [2015] EWHC 305 (Admin)In this recent appeal, the High Court considered whether allegedly inadequate representation by counsel during a Fitness to Practise
Nicholas-Pillai v General Medical Council [2015] EWHC 305 (Admin)
In this recent appeal, the High Court considered whether allegedly inadequate representation by counsel during a Fitness to Practise Panel ("the Panel") hearing rendered the decision, and subsequent removal of the appellant doctor's ("NP") name from the medical register, unjust.
Facts
In 2010, NP's performance during a performance assessment was found to be unacceptable in three key areas: assessment of patients' condition, providing or arranging treatment and record keeping. Overall, his performance was deemed 'unacceptable' and 'deficient'.
Between the 14 and 25 January 2013, the Panel's hearing took place which dealt with the allegation that NP's fitness to practise was impaired by reason of a deficient professional performance on the basis of the performance assessment. The doctor's barrister ("B") was absent from the hearing for three days, which meant that NP was in part represented by B and in part by himself. The Panel heard evidence from the four assessors who had conducted the performance assessment, NP and numerous witnesses called by the appellant. Upon finding impairment, the Panel decided that the only appropriate sanction was erasure of the doctor's name from the register.
Appeal
Upon appeal to the High Court, NP argued that the hearing was unjust as a result of the incompetence of his representation. Specifically, B lacked preparation and did not deal adequately with potential tribunal bias arising from a connection between the chair and lead assessor.
Laing J quickly dismissed NP's submission that the Panel was wrong to conclude that the doctor's practice was deficient, holding that there was no reason to depart from the Panel's conclusions on this issue. The Court further emphasised that the Panel considered all alternative sanctions, including conditional registration, and gave meticulous reasons for their decision.
However, it was noted that the transcripts of the hearing revealed B was 'completely out of his depth, and should never have agreed to act for the appellant in this case'. The Court applied the strict test laid down in R (Aston) v Nursing and Midwifery Council [2004] EWHC 2368 (Admin): Was the incompetence of such degree that no reasonable advocate would have acted in that way and did any such incompetence cause the hearing to be unjust? Laing J further cited Hughes J's comment in R (B) v Hampshire County Council [2004] EWHC 3193 (Admin) that the ground of appeal is an 'undesirable form of satellite litigation which is to be discouraged'.
Although the Court stated that the conduct satisfied the first test, the hearing was not considered unjust for a number of reasons. Firstly, NP did not grasp the opportunity to adjourn in order to instruct new representatives. NP was also in a good position to cross-examine the two GP assessors and make submissions on the medical aspects of the case through his familiarity with the assessment. Despite the lack of preparation by B, NP was able to fully put his case in the cross-examination and evidence-in-chief.
The link between the chair and lead assessor (who worked together in the same hospital for eight years) was held to be tenuous and would not have impacted on the fairness of the hearing. Importantly, counsel's representation did not "obstruct or obscure a clear view of the underlying reality" that there were serious deficiencies in NP's fitness to practise and he had done very little to remedy these during his suspension.
Comment
The case confirms the high threshold for this ground of appeal and emphasises the role of the panel in actively upholding the right to a fair trial. Where there are warning signs that the right could be prejudiced, a panel could be expected to fulfil its role by implementing suitable measures (for instance, providing an opportunity to obtain fresh representation or ensuring the doctor's right to cross-examine witnesses is not prejudiced in any way).
In this recent appeal, the High Court considered whether allegedly inadequate representation by counsel during a Fitness to Practise Panel ("the Panel") hearing rendered the decision, and subsequent removal of the appellant doctor's ("NP") name from the medical register, unjust.
Facts
In 2010, NP's performance during a performance assessment was found to be unacceptable in three key areas: assessment of patients' condition, providing or arranging treatment and record keeping. Overall, his performance was deemed 'unacceptable' and 'deficient'.
Between the 14 and 25 January 2013, the Panel's hearing took place which dealt with the allegation that NP's fitness to practise was impaired by reason of a deficient professional performance on the basis of the performance assessment. The doctor's barrister ("B") was absent from the hearing for three days, which meant that NP was in part represented by B and in part by himself. The Panel heard evidence from the four assessors who had conducted the performance assessment, NP and numerous witnesses called by the appellant. Upon finding impairment, the Panel decided that the only appropriate sanction was erasure of the doctor's name from the register.
Appeal
Upon appeal to the High Court, NP argued that the hearing was unjust as a result of the incompetence of his representation. Specifically, B lacked preparation and did not deal adequately with potential tribunal bias arising from a connection between the chair and lead assessor.
Laing J quickly dismissed NP's submission that the Panel was wrong to conclude that the doctor's practice was deficient, holding that there was no reason to depart from the Panel's conclusions on this issue. The Court further emphasised that the Panel considered all alternative sanctions, including conditional registration, and gave meticulous reasons for their decision.
However, it was noted that the transcripts of the hearing revealed B was 'completely out of his depth, and should never have agreed to act for the appellant in this case'. The Court applied the strict test laid down in R (Aston) v Nursing and Midwifery Council [2004] EWHC 2368 (Admin): Was the incompetence of such degree that no reasonable advocate would have acted in that way and did any such incompetence cause the hearing to be unjust? Laing J further cited Hughes J's comment in R (B) v Hampshire County Council [2004] EWHC 3193 (Admin) that the ground of appeal is an 'undesirable form of satellite litigation which is to be discouraged'.
Although the Court stated that the conduct satisfied the first test, the hearing was not considered unjust for a number of reasons. Firstly, NP did not grasp the opportunity to adjourn in order to instruct new representatives. NP was also in a good position to cross-examine the two GP assessors and make submissions on the medical aspects of the case through his familiarity with the assessment. Despite the lack of preparation by B, NP was able to fully put his case in the cross-examination and evidence-in-chief.
The link between the chair and lead assessor (who worked together in the same hospital for eight years) was held to be tenuous and would not have impacted on the fairness of the hearing. Importantly, counsel's representation did not "obstruct or obscure a clear view of the underlying reality" that there were serious deficiencies in NP's fitness to practise and he had done very little to remedy these during his suspension.
Comment
The case confirms the high threshold for this ground of appeal and emphasises the role of the panel in actively upholding the right to a fair trial. Where there are warning signs that the right could be prejudiced, a panel could be expected to fulfil its role by implementing suitable measures (for instance, providing an opportunity to obtain fresh representation or ensuring the doctor's right to cross-examine witnesses is not prejudiced in any way).