Newsletters Professional Discipline 31st May 2023

Abuse of Process in Regulatory and Disciplinary Proceedings: A Case Study

When, as law students we are taught about abuse of process we feel it unlikely we will either deploy it or succeed in deploying it. That reticence is understandable given that for the last 20 years or so the courts have seemingly narrowed the areas where it can or should succeed and reiterated it is an exceptional remedy that should only sparingly be used.

The starting point must be to accept that it is indeed a remedy of last resort: it brings proceedings to an abrupt end. However, it is in my view, a fundamentally important one that we should not be reluctant to deploy in the appropriate circumstances.

In Connelly v DPP [1964] AC 1254, Lord Devlin noted that the courts have:

an inescapable duty to secure fair treatment for those who come or are brought before them’.

In R v Horseferry Road Magistrates Court Ex p. Bennett (No.1) [1994] 1 AC 42, a New Zealand citizen alleged to have committed criminal offences in England, was forcibly returned to the UK by British police.  He alleged that he had effectively been kidnapped to be brought before the court. Whilst the court noted there was no suggestion that the appellant could not receive a fair trial or indeed that it would be unfair to try him (if he had been returned to the UK through extradition or lawful means), it was the backdrop of how he was brought within the jurisdiction that was significant. Lord Grifiths said:

‘If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law which embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.’

Most recently, in R v Maxwell [2010] UKSC 48, the Supreme Court confirmed the power to stay proceedings in two categories of cases:

  • where it will be impossible to give the accused a fair trial or
  • where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case

For most of us the areas we are likely to be involved in include:

  • Delay
  • Breach of promise/Unfair Conduct
  • Non-availability of evidence
  • Disclosure
  • Entrapment
  • Complexity

It is, of course, settled law that the Defendant/Registrant bears the burden of establishing abuse on the balance of probabilities: Telford Justices, Ex parte Badhan [1991] 2 QB 78.

A case I was recently involved in exemplified how this law could manifest itself and trigger a successful abuse of process argument.

The practitioner in question had initially been investigated or made the subject of comment to the GMC by the General Pharmaceutical Council (‘GPhC’), the Care Quality Commission (‘CQC’) and then the police. The CQC had accused the doctor of committing a criminal offence under Section 10 of the Health and Social Care Act 2008, namely carrying on a regulated activity in the absence of being registered with it.

Nonetheless, approximately four months later, the CQC decided to take no further action and accepted the doctor met the appropriate exemptions i.e., its original view of a potential criminal offence was entirely wrong. Ultimately, the police too did not identify any criminal activity in what the doctor was doing and so closed its investigation.

Despite the criticism of how he had apparently treated patients, neither the Police, GhPC or indeed the CQC had interviewed any patient prior to making the assertions they did to the GMC.  In fact, nor did the GMC (initially at least) when it began its investigation.

The GMC expert instructed to look at the case was highly critical and seemed to agree with many of the criticisms the other regulators had made including over-prescribing, prescribing outside the NICE guidelines and that the doctor had failed to provide good clinical care by not (amongst many other matters) obtaining an adequate history from the patients, adequately exploring psychiatric issues with the patients and/or obtaining informed/adequate consent;

This report was used to base the allegations against the doctor: allegations that covered some 36 pages and, by the Defence calculations, amounted to approximately 1887 possible findings of fact.

Put differently, in the almost 5 years since the police had referred its concerns to the GMC, until very shortly before the hearing date, the totality of the GMC’s ‘investigation’ into Dr X’s alleged misconduct amounted to the instructing of this one expert. An expert that went on, the Defence submitted to err, and which the GMC compounded by not only failing to identify that error but using it as the foundation for many of the allegations which the Case Examiners went on to refer to a Tribunal and hence triggering the abuse.

The error, which had seemingly been missed by all the GMC lawyers, the Case Examiners and the Interim Orders Tribunal (‘IOT’) – was, that no one had apparently considered that there is a distinction to be drawn between a ‘recording’ omission and the substantive action i.e., it cannot necessarily or logically follow that because a doctor had failed to record a discussion about a certain matter that the discussion itself did not take place.  Similarly, that because a practitioner had failed to record consent, that in fact there was no consent.

It was at this point that the GMC sought to remedy this lacuna by approaching the patients no one had previously spoken to.

The problem was that when it did approach some of the patients, only a few responded: some had regrettably passed away, others had moved, and others simply did not wish to participate. Of those that did respond, it became clear that not only would those original allegations not have been evidentially supported by them but that they were nothing short of glowing and complimentary of the care and attention given to them by Dr X – extinguishing vast swathes of the allegations originally made by the expert and adopted both by the GMC and the Case Examiners and indeed placed by the GMC before an IOT for an interim order.

The GMC suggested that any prejudice could be dealt with by it simply discarding hundreds of allegations that fell within that criticism – so even if there was a prejudice it had now been remedied.

The Defence argued this missed the point and the spirit of ex parte Bennett: had the GMC properly investigated this matter (as is its duty) and obtained witness statements from some or all of the patients and/or others it is unlikely that many of the allegations it originally sought to prove against Dr X would have been pleaded. This would, inevitably, have impacted on the matters that could or should have been the subject of comment by an expert;

In turn, this could or would have had an impact on what decision the Case Examiners took in respect of the case as a whole and as to whether, in fact, it could have been disposed of in a manner other than a full hearing.  Moreover, it could or would have impacted on what an IOT would have been invited to consider and/or whether any interim order was necessary (as is the requirement) at all.

Put another way, procedural systems and/or safeguards that were supposed to be in place to ‘filter’ or identify such matters had singularly failed.

This was compounded, we submitted, by the fact that the GMC had seemingly chosen to ignore the concerns expressed by the Case Manager at a number of the Pre-Hearing Meetings in respect of the evidence, the detail of the allegations and the complexity involved for any Tribunal.

In this disputed application, the Tribunal found that both limbs of Maxwell had been engaged.

The Tribunal noted, amongst other things, that:

  • The inadequacy of the GMC’s investigation had led directly to Dr X being unable to have a fair hearing. No remedy would enable a Tribunal to obtain evidence from a deceased patient, or one who had moved home without leaving any current address.
  • The ongoing refusal of the GMC to seek the ‘best evidence’, with reliance on one expert report, could give an impression of unfairness.
  • The usual protections which should have been afforded to a doctor subject to a GMC investigation were not implemented.
  • Due to irremediable deficits in the GMC investigation and conduct of this case, it would be impossible for Dr X to be afforded a fair hearing by a substantive Tribunal.
  • The Tribunal considered that a reasonable and well-informed member of the public, aware of all relevant facts, would not be surprised or dismayed by a decision to stay proceedings.

This decision was not appealed either by the GMC or the Professional Standards Authority.

Whilst any article of this size cannot deal with every matter or issue a case brings up, I hope that the above illustrates that individually and cumulatively this case raised issues that were not only of grave concern to the practitioner and his legal representatives but concerns that when brought to the Tribunal’s attention caused it sufficient concern as to invoke its powers via this ‘remedy of last resort.’ [1] 

Whilst the threshold for an abuse of process argument to succeed is rightly high, it can never succeed if it is not deployed.

This article is based on a seminar Marios Lambis gave to ARDL in April 2023.


Marios Lambis KC

[1] Sir Brian Leveson in Crawley [2014] EWCA Crim 1028.

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