Newsflash Professional Discipline 8th Jan 2019

Combatting a Culture of Adjournments?

General Medical Council v Hayat [2018] EWCA Civ 2796

It is perhaps all too common for a registrant to fail to attend his Fitness to Practise hearing. Frequently such non-attendance is justified by a sick note from a GP excusing him from attending work. In the High Court appeal of Hayat Lang J acceded to an appeal on the basis that the Tribunal, in proceeding in the absence of Dr Hayat, had ignored such evidence and had wrongly distinguished unfitness to work from unfitness to attend a hearing. On appeal the Court of Appeal overturned her decision. In doing so it noted the particular requirements which should be met if medical evidence is to be relied on to justify an adjournment.

The central allegation Dr Hayat faced was that he had made a false insurance claim, having faked a heart attack on a flight. In the run up to the hearing he made repeated applications to adjourn his case. On 3 October 2016 he argued he had had insufficient time to prepare. On 22 October he requested an adjournment because he had insufficient funds to pay lawyers. On 31 October, the day of the hearing, he applied for an adjournment through counsel on the basis of a handwritten note from A&E which stated he should be off work for a week due to back pain. Unsurprisingly, the Tribunal rejected this application.

Having read its decision, however, Dr Hayat was found in the building apparently unconscious. Emergency services were called but when the paramedic attempted to pass a tube through his nose Dr Hayat reacted. He informed the paramedics of chest pains. He was taken to hospital. The following day the GMC spoke to Dr Bright who confirmed he understood Dr Hayat had not been unconscious the previous day and there was no evidence of a cardiac incident. Dr Hayat underwent an angiogram which was “perfectly normal”. On 3 November Dr Hayat was kept in hospital due to a pain complication arising out of the angiogram and the case was adjourned until the following Monday. Dr Hayat was warned that in the absence of medical evidence to explain his non-attendance the GMC were likely to apply to proceed in his absence on that occasion.

The GMC received further medical information from Dr Bright, namely that Dr Hayat had asked him not to comment on his fitness to attend the hearing since he was not under his care, but he could say that in similar cases he would assume patients would be fit to attend court. Dr Cunningham, his treating consultant when he was discharged, stated “We found no significant cardiac pathology which would stop the GMC proceedings from continuing.

Nonetheless, at the resumed hearing on Monday 7 November, Dr Hayat failed to attend. He relied on a sick note which post-dated his discharge and which stated he had developed a “post angiography right arm bruising infection”. He was deemed not fit to work. The Tribunal decided to proceed in his absence and in due course he was struck off. On appeal Lang J allowed his appeal on the basis of this new medical evidence. The court considered that if someone was not fit to work generally that should justify an adjournment.

The Court of Appeal roundly rejected this argument. It reviewed the authorities, endorsing Adeogba and observing that cases which preceded it need to be treated with care. Where a medical condition was put forward as justification for an adjournment, the court observed the medical evidence

must be evidence that the individual is unfit to participate in the hearing: see Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 724 (Ch) at [19]. That evidence must identify with proper particularity the individual’s condition and explain why that condition prevents their participation in the hearing: see Levy v Ellis Carr [2012] EWHC 63 (Ch) at [36]. Moreover, that evidence should be unchallenged: see Brabazon-Drenning at [18].

It quoted the test in Levy v Carr:

In my judgment… such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence

A pro-forma sick note was not sufficient. It also cited Andreou v The Lord Chancellor’s Department:

“The fact that a person is certified on medical grounds is not fit to attend work does not automatically entail that that person is not fit to attend a Tribunal hearing, though very often that will also be the advice of the medical practitioner.”

Moreover, relying on Adeogba, if inadequate medical evidence is served, there is no onus on the tribunal to make further inquiries.

Applying these principles to the instant appeal, it rejected Lang J analysis that because the sick note post-dated previous medical evidence from Dr Bright and Cunningham it somehow trumped it. The Tribunal was entitled to have regard to the preceding evidence, and the repeated attempts at adjourning the case. Lang J was wrong to say that a work related sick note will generally result in an adjournment. Nothing in that note indicated Dr Hayat could not participate in the hearing. It fell short of the Levy v Carr test.  Indeed, the only new information in the sick note was the reference to the bruising infection which could not justify an adjournment. Lang J erred in saying the Tribunal had “disregarded” the sick note – it had given the note appropriate consideration – and that the Tribunal should have made further inquiries. The onus lay on Dr Hayat. The Tribunal had exercised its discretion and, as a specialist body, this should be respected. The court summed up the position in this way:

since the Tribunal’s decision to adjourn was an exercise of discretion, this court would have to be satisfied that a high hurdle has been surmounted before it intervenes. In Canfern Ltd v Cameron McDonald [2000] 1 WLR 1311at [32], Brooke LJ said that the appellate court should only interfere with such decisions where the decision of the court below “exceeded the generous ambit within which a reasonable disagreement is possible”

As we saw in Adeogba, the court remains determined to address the danger of a potential “culture of adjournment”. This decision is likely to presage a more robust attitude to health-related adjournment applications. The stringent test set out in Levy v Carr will no doubt be the touchstone for any such applications in the future.

Christopher Geering

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