Court of Appeal Takes a Swipe at “Culture of Adjournment” Approach in Regulatory Proceedings
A doctor who voluntarily absents himself from his fitness to practise hearing cannot expect that the hearing will be adjourned to enable him to make representations prior to sanction, even when strike-off is the most likely outcome.
That was the finding of the Court of Appeal in Sanusi v GMC [2019] EWCA Civ 1172. The case continues the movement of professional regulation away from the criminal jurisdiction when it comes to proceeding in absence. Giving the judgment, Lady Justice Simler said the factors in R v Jones [2003] 1 AC 1 were a starting point when considering proceeding in absence, but that GMC v Adeogba [2016] EWCA Civ 162 gave the authoritative guidance in professional regulation.
Dr Sanusi faced allegations of poor clinical practice, and of dishonesty in failing, at a job interview, to tell his prospective new employer that he had been dismissed because of the clinical issues. He engaged with the FTP process up until the hearing, but said he could not attend because he was then re-training as a GP and would not be allowed to take the time off (he had not actually asked). He said he could not afford to send a legal representative. The Tribunal found the most serious of the dishonesty allegations proved, as well as the clinical failings. It struck Dr Sanusi off, as a result of the dishonesty, noting particularly his lack of insight and failure to take personal responsibility.
Dr Sanusi appealed on two grounds. The first was an alleged failure on the part of the Tribunal to consider adjourning the hearing to give him a chance to make representations prior to sanction. The second related to the fact that he had sent mitigating material to the GMC which had never been passed on to the Tribunal.
He lost on both. With regard to the possible adjournment, the Court set out and endorsed the principles in Adeogba. Simler LJ emphasised the importance of the ““fair, economical, expeditious and efficient disposal of allegations” and the absence of any means to enforce attendance by a registrant” [at para 65]. She stated that cases which suggest an adjournment in the circumstances in which Dr Sanusi found himself should now be treated with “great caution”. Addressing two of them, she suggests the approach in Sukul v BSB [2014] EWHC 3532 (admin)] and Lawrance v GMC [2015] EWHC 586 (admin) “inadequately recognises the nature and objective of the regulatory system in play and the significant disruption caused by the culture of adjournment sanctioned by it” [para 69].
The position for registrants who do not attend a hearing is now summed up in paragraph 70 of this judgment:
“… in a case where a registrant chooses not to attend a tribunal hearing (for good or bad reason) he or she must be taken to appreciate that if adverse findings are made they … will be entirely reliant on any written submissions or representations made … in advance of the hearing.”
It should be noted that she does make an exception for a registrant with “unchallenged medical evidence”.
The judgment goes on to deal with ground two, the failure by the GMC to put before the Tribunal some mitigating material which it had received earlier in the proceedings, but which Dr Sanusi had said should be read alongside the statement he provided for the hearing. She held that both the GMC and the Tribunal itself should take “reasonable steps” to ensure that all relevant mitigation material is put forward. However that did not require “extensive trawls through the archives” nor did it imply an obligation of “sifting through large quantities of unindexed and uncategorised documentation” provided by the registrant.
On the facts of Dr Sanusi’s case there was a procedural unfairness in the failure to consider the missing material. The court noted the very high threshold, once a finding of procedural unfairness is made, for concluding that a fair procedure would have made no difference. That threshold is that “the decision would inevitably have been the same” [R (Smith) v NE Derbyshire Primary Care Trust [2006] 1 WLR 3315]. The court found Dr Sanusi’s additional material could have made no difference to the outcome and so the appeal was dismissed on this ground too.
Ben Rich
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