Case Summary – General Medical Council v Adeogba; General Medical Council v Visvardis  EWCA Civ 162
An appeal by the GMC against a decision of the High Court to order fresh hearings where panels had proceeded in absence was allowed. Sir Brian Leveson P rejected the suggestion that the General Medical Council should go beyond their statutory obligations when effecting service and allowed the appeal; the order of the panels were restored. Whilst there is real force to the submission that the Panel would not have received the Registrant's input on the question of fact, impairment and sanction, the Panel had made it clear that they would take all necessary steps to ensure the hearing was fair to all; the difficulty of the Panel's determinations in the absence of a Registrant cannot override all other considerations.
Dr Olufemi Adeyinka-Adeogba ("Dr A") was in Nigeria at the relevant time. He did not respond to correspondence or attend the hearing. He was aware of the investigation and whilst in Nigeria, failed to access the only mechanisms available to the General Medical Council ("GMC") to communicate with him.
Dr Evangelos-Efstathios Visvardis ("Dr V") challenged the disciplinary process and thereafter refused to participate until his concerns had been addressed.
In each case, the Fitness to Practise Panel of the medical Practitioners Tribunal Service ("MPTS") decided to proceed in the absence of the Registrant. Subsequently, orders for erasure were made.
Each individual doctor appealed the decision to erase them from the medical register. The appeals were factually unconnected.
Dr A's grounds of appeal before the High Court were that:
- There was fresh evidence to be admitted (namely, the Registrant's reason for non-attendance), and that the overriding objective which requires cases to be dealt with justly, 'trumps' the principles laid down in Ladd v Marshall  1 WLR 1489 for the admission of new evidence; and
- The decision of the Panel to proceed in absence under Rule 31 of the General Medical Council (Fitness to Practise) Rules 2004 ("the 2004 Rules") was flawed.
Dr V's grounds of appeal before the High Court were that:
- The decision of the Panel to proceed in absence under Rule 31 of the 2004 Rules was wrong or unjust because of a serious procedural error, namely:
i. that the Panel had failed to properly balance the public interest with the interests of the Registrant;
ii. that it failed to take account of the fact that the Registrant had not said he did not wish to attend, and that he denied the allegations;
iii. that it failed to take account of the Registrant's evidence;
iv. that it failed to bear in mind that discretion was "severely constrained";
v. that it erred in concluding that the Registrant had waived his right to appear; and
vi. that it was wrong to conclude that when the Registrant made an application to ''cancel'' the hearing, he ought to have understood the difference between cancellation and postponement.
On appeal (during separate hearings in front of different Tribunals) it was determined that fresh evidence should be admitted and that each panel had been wrong to proceed in the absence of both Dr A and Dr V (see  EWHC 3872 (Admin) and  EWHC 4531 (Admin)). Fresh hearings were directed. Other grounds of appeal on the basis of the evidence heard had been identified, but those further challenges were not analysed.
Leave for a second appeal was granted in both cases by Pitchford LJ who observed that the grounds raised important points of principle and practice in relation to matters of public interest. He directed that the cases be linked.
Handed down by Sir Brian Leveson P.
Sir Brian Leveson P first looked at the statutory regime and the law regarding proceeding in absence. It is accepted that a panel can proceed to consider and determine an allegation in a Registrant's absence if they are satisfied that all reasonable efforts have been made to effect service of the notice of hearing in accordance with the Rules (Rule 31 of the 2004 Rules). Sir Brian Leveson P looked at the decision in Zia v General Medical Council  EWCA Civ 743 (para 46):
"….I do not … approach the construction of the Rules on the basis that the various stages described therein should be regarded as prescribed … rather on the footing that the rules are intended to provide a framework for the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners."
Sir Brian Leveson P then looked at the decision in R v Hayward, R v Jones, R v Purvis QB 862 (2001) EWCA Crim 168  (paras 22(3) – (5)) by reference to the principles developed by criminal law in relation to trial in absence:
"3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representative. 4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented. 5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case…"
but acknowledged that the main statutory objective of the Regulator must also be considered in such circumstances, meaning that the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance.
Further, Sir Brian Leveson P recognised that whilst in a criminal case, steps can be taken to enforce a defendant's attendance, no such steps are available to the Regulator. Moreover, it would "run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process." He also referred to the responsibility of practitioners to engage with their Regulator, and looked at the decision in Jatta v Nursing and Midwifery Council  EWCA Civ 824 which gives guidance on the approach to take where a registrant has failed to update their registered address with the Registrar:
"…in the absence of a fresh notified address the council was bound to send the notice to the old registered address and could not be thwarted in its desire to take or continue these disciplinary proceedings by knowing that the only address they had was an address at which the document would not come to his attention."
Sir Brian Leveson P then looked at the law regarding fresh evidence. It is accepted that fresh evidence (whether written or oral) cannot be admitted as a matter of course; the CPR prescribes that an order of the court must be made before it will receive evidence which was not before the lower course. Ladd v Marshall  1 WLR 1489 details the conditions to be met before fresh evidence will be received:
"[F]irst, 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, though it need not be incontrovertible."
It was argued that TZ v General Medical Council  EWHC 1001, when analysing Muscat v Health Professions Council  EWCA Civ 1090, identified a different approach to fresh evidence which justified departure from the Ladd v Marshall guidance. (In Muscat it was argued that, because of the public interest in assuring that a strike off was warranted, the interests of justice required a broader approach to the admissibility of fresh evidence; this approach appears to have been affirmed in TZ which seems to have elevated the absence of a review mechanism as itself justifying departure from Ladd v Marshall). However, Sir Brian Leveson P rejected that suggestion and determined that neither case supported the proposition of the departure from Ladd v Marshall.
Sir Brian Leveson P concluded that the Panel, in respect of Dr A, were entitled to exercise its discretion and order that the proceedings continue, given that the Regulator had met its statutory obligations in effecting proper service. He disagreed with the criticism expressed by the Judge in the High Court that the GMC should have done more stating that (para 59) "Their responsibility is very simple. It is to communicate with the practitioner at the address he has provided; neither more nor less. It is the practitioner's obligation to ensure the address is up to date." He determined that the Judge had fallen into error when placing emphasis on the failure of the Regulator to give the practitioner more than 28 days' notice, and that a suggestion that the practitioner must be allowed one (or perhaps more than one) adjournment was a further error as it would by contrary to the efficient despatch of the regulatory regime.
In respect of the fresh evidence, Sir Brian Leveson P concluded that whilst the Judge in the High Court was entitled to admit the evidence, the explanation for Dr A's failure to attend (that he did not know of the hearing date, notwithstanding the fact that the Regulator had effected proper service) did not justify reversing the decision of the Panel.
Sir Brian Leveson P concluded, in respect of Dr V, that there was no basis for interfering with the decision of the Panel to continue in absence of the Registrant. There was no reason for the Registrant to have failed to participate in the hearing; he should have taken steps to prepare for it, to arrange representation and to travel to attend. Registrants cannot be permitted to require the consideration of the complaint against them without their co-operation and submissions, but by collateral application unrelated to the merits – such as failing to comply with directions to disclose documents upon which they intend to rely. If Dr V wished to complain about the procedure itself, it was open to him to do so by judicial review, not by conducting case management stages in such a way that failed to deal with the issues required to be addressed. In those circumstances, a Panel would be entitled to conclude that the Registrant had not engaged with the process.
Sir Brian Leveson P disagreed with the concern expressed by the Judge in the High Court that the account advanced by the Regulator would go unchallenged, as "…if such a consideration was to prevail above all others, cases would never be heard…. The Panel referred to the need to proceed with "the greatest care" and "great caution" which can only refer to this problem."
In both cases, the appeal was allowed and the order of the panel in respect of proceeding in absence was restored. Each case was remitted back to the High Court for consideration of the grounds of appeal confined to challenges to the evidence heard by the panel.