TZ V General Medical Council  EWHC 1001 (Admin)
The Appellant was a Locum Senior House Officer in the Emergency Department of a hospital in London. An allegation was made by a female patient (Patient A), that on the 6 February 2010 he had spoken to her in a sexual manner and then sexually assaulted. The matter proceeded to criminal charges, and indeed a trial at Blackfriars Crown Court in December 2011, where the Appellant was acquitted.
The Appellant then appeared before a Fitness to Practise Panel over the course of 16 days, concluding on the 28 August 2014. The Panel had found that the Registrant had on the balance of probabilities committed the sexual offences against Patient A, and so they concluded that he had been guilty of misconduct, was impaired by reason of that misconduct, and directed that his name be erased from the Register.
It was just after the Panel had sent an embargoed draft of its findings to the parties that an unrepresented (by that stage) Appellant requested to adduce further evidence. He explained that there were two crucial witnesses who had appeared before the Crown Court, and whose transcript of evidence he wanted to rely on as it would address some of the adverse findings the Panel had made in their draft decision. In particular one of the witnesses was a Health Care Assistant who was present on the day of the alleged incident and whose evidence was very different to Patient A's evidence.
Grounds of Appeal
The grounds of Appeal were summarised as follows:
i. The Panel's analysis of the patient's and the Appellant's credibility was wrong;
ii. The Panel's reasons for why it accepted the patient's evidence over the Appellant's were inadequate.
iii. The Court should admit the evidence of the HCA and /or the patient's then boyfriend, in light of which the Panel's findings of fact were wrong;
iv. The Panel's failure to investigate an allegation of possible impropriety amounted to a serious professional failing.
Gilbart J deals in a few short paragraphs that which had taken a considerable time at the hearing below, namely that the Appellant's application to adduce further evidence should have been heard, as they were "not Functus Officio" (para 81) as suggested by the Legal Assessor and confirmed by the Counsel for the GMC.
The learned judge arrived at that conclusion after considering some of the ample authorities that exist in this area. Thus he had regard to Prudential Assurance Company Ltd v McBains Cooper & Ors  EWCA Civ 172 where Brooke LJ stated "The Judgment is confidential until it is given … It is also clear that the judge is at liberty to alter the terms of his or her judgment (whether to make minor corrections or any other reason) before handing it down formally in court. This, however, is nothing new, because it has always been within the powers of a judge to reconsider his or her decision at any time before it is entered and perfected".
Gilbart J in fact notes that the law has been taken even further since Prudential Assurance Company Ltd v McBains Cooper & Ors. As a perusal of more recent authorities reveals that even when a judgment has been handed down, a judge may under some circumstances revisit its findings.
One of the authorities that Gilbart J quotes at length is the Supreme court case of L and B (Children),  UKSC 8 where Baroness Hale herself systematically went through the authorities, including Cie D'Importation et d'Exportation SA v Abacha  3 ALL ER 513 where Rix LJ had "… referred at para 42 to the need to balance the concern for finality against the proper concern that courts should not be held by their own decisions in a straitjacket pending the formality of drawing up the order".
Gilbart J the considered the points made in the context of the proceedings before him and states "Given the fact that the [GMC] FTP rules contain no provision dealing with an application to call further evidence after the draft factual decision has been sent to the parties, one must consider whether there are good reasons not to find an implicit discretion, when the nature of such a discretion in a tribunal exists, in the words of Baroness Hale, so as to be able to do justice in the particular case before it" (para.86).
In fact he highlights at para.86 that it was the lay Appellant's legal contention that "… there is nothing in the Rules which prevents the Panel from reopening the hearing into the misconduct issue" that was correct as opposed to the advice of the legal Assessor and Counsel for the GMC.
He continues "In my view it is very difficult to accept the concept that a fact finding tribunal, whose decisions on facts can affect the ability of a professional man or woman to practice, and which sends out an embargoed draft, is unable to receive anything other than proposed corrections to its draft, which go to insignificant matters such as a typographical correction, a mistaken reference, or an infelicity of syntax" (para.87).
Then at para. 88 "If there is evidence, which if accepted would tend to show that the draft conclusions reached by the Panel were wrong, it is artificial, and wasteful of responses, to insist that in all cases its admission can only be dealt with if there is an appeal or an application for judicial review."
He also notes that he fully understands why there is no such provision within the Rules – at para. 89 "It is plainly undesirable to have a general rule that a hearing can hear all the evidence put before it by the parties, and then still to be required to hear more evidence some weeks later after sending out its draft findings, That too could produce some waste of resources and lead to unnecessary reopening of Panel hearings, and potentially lead to the recall of witnesses who have already had to go through the strain of giving evidence".
On this issue he concludes "In my judgment there are no considerations which are of such force that the discretion should not be held to exist in a case before the Panel" (para.90).
Having concluded that the panel were not, Functus Officio, and should have permitted the Appellant to make his application to adduce further evidence, the learned judge then considered the relevant evidential tests, as to the type of evidence, and the likelihood of them being successfully adduced.
At para 92 he notes "The Traditional test for the admission of new evidence at the appellate stage is to be found in Ladd v Marshall  1 WLR 1489, where Denning LJ set out the test for the introduction of fresh evidence on appeal:
" … to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed or in other words, it must be apparently credible although it need not be incontrovertible"
Gilbart J also refers to the case of Muscat v Health Professions Council  EWCA Civ 1090 which he cites as softening the effect of the Denning test above – although he emphasises that again this is in respect of appellate stage cases. In particular he states "I regard Muscat as important in its recognition of the factor that it is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register, and that that is a factor which, in an appropriate case, can justify departure from what Smith LJ pithily described as "the old Ladd v Marshall straightjacket" (para.95).
He also referred to the case of Jasinarachchi v General Medical Council  EWHC 3570 (Admin) and noted at para. 97 that that case together with Muscat highlights that "the approach of no longer regarding Ladd v Marshall as setting tests which are solely determinative of an application to adduce fresh evidence".
It is at para.99 that Gilbart J sets out the test to be applied by Panels when considering whether to exercise their discretion to allow further evidence in such circumstances as the present case:
vi. What was the relevance of the new evidence?
vii. Why had it not been called before?
viii. What significance did it have in the context of the draft findings of the Panel?
ix. What effects would its admission have on the conduct of the hearing, and in particular on:
c) The need to recall witnesses
d) The length of the hearing
x. Taking all matters into account, would justice be done if it were not received and heard?
In applying the above test to the present case, he concludes at para. 114 "It follows that I cannot conclude that a properly directed Panel would have decided not to allow the evidence to be called pursuant to the Appellant's application to it".
Thus the judge gave a direction that the erasure decision be quashed, and that the matter be remitted to the Registrar for him/her to refer it to a new Fitness to Practise Panel for a fresh rehearing.