Marios Lambis KC acts in Abuse of Process Argument
Marios Lambis KC mounted a successful abuse of process argument before the Medical Practitioners Tribunal Service (‘MPTS’) in respect of a Consultant Psychiatrist accused of multiple misconduct allegations which included clinical and record keeping deficiencies, allegedly involving some 17 patients.
On one count the doctor faced almost 1900 possible findings of fact and the investigation into his conduct had spanned some 5 years.
Marios argued that the manner in which the General Medical Council (‘GMC’) conducted (or did not) its investigation into the issues of the case, the background to the case, and the nature and number of allegations meant that the doctor could not receive a fair hearing and/or in all the circumstances of the case, it would be unfair to try him.
The case included the GMC seeking to initially prosecute a multitude of allegations upon which the Defence argued there was no evidential foundation, a matter the GMC initially refuted. Arguments to support the abuse of process included:
- The evidential basis of many of the allegations was flawed.
- The GMC had failed to investigate potentially exculpatory evidence.
- The GMC had breached its own Guidance on Drafting Charges.
- There was an unnecessary delay in the manner the GMC had prepared and/or investigated its case.
- The nature, breadth and form of the allegations were oppressive and unwieldy.
- The doctor had been deprived of the various protective mechanisms afforded to doctors being investigated under the Fitness to Practice regime.
- The GMC had seemingly ignored the burden of proof.
After days of legal argument, the MPTS Tribunal found that there had been an abuse of the process and stayed the proceedings.
The MPTS Tribunal found, amongst other things:
- The inadequacy of the GMC’s investigation had led directly to Dr X being unable to have a fair hearing. No remedy would enable an MPTS Tribunal to obtain evidence from a deceased patient, or one who had moved home without leaving any current address. Had the GMC approached patients earlier, it may have been able to rely on their statements, even if some were unable to be tendered for cross-examination.
- The Defence had shown that Dr X would be unable to receive a fair hearing because evidence which should have been obtained could now not be obtained.
- The GMC did not provide a good reason for failing to apply to amend the Allegation once it had decided numerous particulars could not be proved.
- That it would be unconscionable to allow this unwieldy, imprecise Allegation to proceed to a substantive hearing.
- As a result of irremediable gaps and deficiencies in this investigation, filtering and drafting process, Dr X was unable to receive a fair hearing.
- The usual protections which should have been afforded to a doctor subject to a GMC investigation were not implemented in the case
Whilst the MPTS Tribunal was aware that a stay of proceedings is always a last resort, it took the view that no other remedy would suffice in this case, because deficiencies in the GMC investigation had undermined any prospect of Dr X being afforded a fair hearing.