Towuaghantse v GMC [2021] EWHC 681 (Admin) Coroner’s findings, independence of experts and registrant denials: this case is not one to put on the “read later” pile

It is difficult to know where to start with Towuaghantse v GMC [2021] EWHC 681 (Admin). I will give you a briefest account of the facts in a moment, but potentially Mostyn J’s judgment in this case stands as authority for the following principles:

1. The factual findings of a coroner, and any narrative conclusion, are all admissible against a registrant.
2. Authors of expert reports do not have to be independent in the sense of uninvolved with the institution or any of the players in a case, they are merely subject to a Porter v McGill style test of bias or apparent bias.
3. The capacity of a registrant to remediate sincerely should be judged by reference to evidence unconnected with their denials of the factual charges, unless the fact-finding decision included findings of blatant dishonesty by the registrant (a refinement of the same judge’s recent pronouncements in GMC v Awan [2020] EWHC 1553 (Admin)).

The Appellant was a paediatric surgeon who took what the GMC’s expert said was a really bad decision to operate on a new born infant for a rare birth problem before the child was ready, and worse then ignored the warnings of other medical staff when the baby developed post-operative complications. The child died as a result, and would have lived had the doctor been competent. The Tribunal erased him from the register.

Coroner’s Court findings: one of the grounds of appeal was the reliance placed by the Tribunal on 2½ pages of factual findings, and a half page narrative conclusion of the inquest into the death. For reasons which are unclear, the Appellant did not contest the admissibility of the factual findings, only the narrative, which identified three failures by the Appellant which led to the death.

Mostyn J said he did not even have to grapple with this issue of how the opinion of another judicial office holder was admissible, because the rule relating to that “has long been held not to apply to inquisitorial proceedings” and “regulatory proceedings … are quintessentially inquisitorial”. He stated it was put beyond doubt by Rule 34(1) of the GMC (FTP) Rules 2004 where it says that the Tribunal may admit any relevant and fair evidence “whether or not such evidence would be admissible in a court of law”. This, he said, would not sanction the Tribunal substituting the Coroner’s view for its own, but whether that has happened or not will be apparent from the written decision [paras 30-32].

Expert evidence: the Appellant had objected to the GMC expert on the ground that the two had met, had even competed for jobs, and the expert had done some of his training at the hospital and knew some of the consultant witnesses. The expert was said by the Judge to have expressed himself in “colourful, rhetorical, intemperate and unrestrained” language not typical of expert reports. However the Tribunal had been right to use a test of “actual or apparent bias” and there was none.

Effect of denials on impairment/sanction: finally the judge refined somewhat his comments from Awan [see my 2020 article on Awan here] that effectively a registrant should be allowed to advance any defence however ridiculous or implausible without facing additional sanction for it. In this case he made a distinction between the denial of plain facts, and the denial of evaluative judgments on them (e.g. whether a duty existed, or whether the facts amounted to dishonesty). Denials of the basic facts may beheld against a registrant, but even then only if the Tribunal makes a finding of “blatant dishonesty” relating to that part of a registrant’s evidence.

It is not possible to do justice to these important and controversial aspects of this decision in the ambit of this article. Defence practitioners and prosecutors will need to study the case, as they may find themselves needing to deal with it in the future.

Ben Rich