The Use Of Court Judgments In Professional Disciplinary Proceedings: R v General Medical Council [2015] EWHC 299 (Admin)
On 13 February 2015, Ouseley J handed down judgment in R (on the application of Squier) v GMC. The case provides a helpful summary of the law relating to the admissibility of court judgments in professional disciplinary proceedings. It will be a useful case for legal representatives to refer to, as a starting point at least, when this issue arises. However, as shall be revealed this article, the boundaries of admissibility are still not clear-cut.
Factual Background
Dr Squier was an expert consultant paediatric neuropathologist. She had given evidence in a number of criminal and family cases, which concerned alleged non-accidental head injury to infants, so-called “shaken baby syndrome”. She opined that injuries were consistent with an accidental cause, a view that the courts rejected.
Following a complaint by the National Police Improvement Agency, the GMC initiated proceedings. It was alleged, for example, that she had provided expert opinion outside her field of expertise, failed to present her report and the research material in a way that was as complete and accurate as possible, failed to discharge her duties as an expert; and that such actions had been misleading and/or dishonest.
The Judgments To Be Adduced
Before the Fitness to Practise Panel (FTPP) of the MPTS, the GMC sought to adduce five High Court judgments and one judgment of the Court of Appeal Criminal Division. After legal argument, the judgments were ruled admissible, but with judicial criticism against Dr Squier redacted (despite, one assumes, the entire judgments being publically available anyway).
The GMC’s purpose in admitting the redacted judgments was so that the FTPP could understand the factual background to the expert evidence given by Dr Squier. Ouseley J’s judgment does not, unfortunately, make clear exactly what other evidence was to be adduced by the GMC, although given the lengthy time estimate for the final hearing, it is clear that there was a great deal of other evidence to be presented.
The Judicial Review Proceedings
Ouseley J first dealt with the issue of whether judicial proceedings against preliminary rulings of the FTPP could be mounted at all. He referred to the guidance in Mahfouz v GMC [2004] EWCA Civ 233. In general, it is preferable for parties to wait until final determination, and then use the statutory appeal procedure. In this case, however, the admission of evidence was crucial to the GMC case and it was to be a long case (up to 90 days on one estimate) with significant resources being expended, which might be wasted if the FTPP’s preliminary rulings had been wrong. In the particular circumstances, therefore, it was appropriate to proceed by way of judicial review, before the final FTPP hearing.
The main part of Ouseley J’s judgment concerned the admissibility of court judgments in disciplinary proceedings. Key points can be summarised as follows:
- The starting point was the regulator’s rules governing admissibility of evidence. Rule 34(1) of the GMC’s Fitness to Practice Rules 2004 (as amended) provides that the panel may admit evidence considered to be fair and relevant, whether or not such evidence would be admissible in a court of law. It was unhelpful, therefore, to use Hollington v Hewthorn Ltd [1943] KB 587, concerning admissibility of judgments in subsequent court proceedings, save to the extent that it goes to the question of what is fair and relevant.
- Where there had been a trial at least before a High Court Judge, the notes of evidence and judgment might afford prima facie evidence, but not conclusive evidence, in support of disciplinary charges: see GMC v Spackman [1942] QC 627; Constantinides v Law Society [2006] EWHC 725; Chaudhari v General Pharmaceutical Council [2011] EWHC 3433 (Admin.); R(Hollis) v ACCA [2014] EWHC 2572 (Admin.)[1].
- The registrant may call evidence to rebut the findings in a court judgment. The previous proceedings will not have been between the same parties, and so there would be no estoppel or res judicata: see GMC v Spackman.
- It may be important for the FTPP, considering alleged misconduct of an expert witness, to be aware of the context in which evidence was given in previous proceedings: see GMC v Meadow [2006] EWCA Civ 1390.
- The “crucial point” about the role of the disciplinary tribunal is that it “should be the decision maker on the issues and evidence before it; it should not adopt the decision of another body as a substitute for reaching its own decision on the evidence before it, on the different issues before it”. It may be “unfair for the judgments to be a significant influence on the mind of the tribunal on the issues before it…”, (paragraph 43).
On the facts of this case, Ouseley J found that it was not unfair for the redacted judgments to be admitted. The GMC’s purpose was not to substitute court judgments for the judgment of the FTPP. In fact, “the avowed basis for their admission may not go as far as perhaps it could have done”: see GMC v Spackman (paragraph 44).
Ouseley J did not articulate precisely how far the GMC could have gone.
Except where examples in caselaw can be used, the precise boundaries of fairness may still be difficult to ascertain.
Of note, is that, unlike the accountant in R(Hollis) v ACCA (2014), Dr Squier had not been a party to the previous court proceedings, and would not have had the opportunity to be represented or her interests protected. Her counsel sought to rely upon this point as an important factor against admitting the redacted judgments. Ouseley J did not deal with this point in depth, but simply said that although Dr Squier could not have addressed matters in the court proceedings, she could do so before the FTPP. It is unclear whether, in different circumstances, this might still be a relevant factor for the panel to consider when reaching a decision on the admissibility of court judgments.
Ouseley J also ruled on a second issue, namely adequacy of particulars of the allegation. He upheld the complaint in respect one paragraph, describing it as “hopelessly inadequately particularised”. The ‘draft’ opening note could not cure the deficiencies. This would have been a fact-sensitive decision, and there is no in-depth legal analysis of the principles involved, although representatives might still be able to use it as an example to present to a panel when arguing that an allegation has not been adequately particularised.
Conclusion
The case of Squier will serve as a useful summary of the law relating to admissibility of court judgments in disciplinary proceedings, especially where the regulator’s rules do not specifically allow for court judgments to be admitted. The redacted judgments in this case fell easily within the boundaries of what was admissible. Moreover, the GMC’s position was fortified, no doubt, by the ruling in GMC V Meadows, which highlighted the importance of the FTPP’s appreciating the background against which expert evidence had been adduced. However, the judgment does not attempt to demarcate precisely the boundaries of admissibility, and it will all come down to what is fair in a particular case.
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