Case Summary - Kimmance v General Medical Council  EWHC 1808 (Admin)
High level summary
A case that reminds regulators of the importance of ensuring allegations reflect the available evidence and acting fairly but is also a stark reminder of the danger of registrants not attending their disciplinary hearing (echoing Burrows v GPhC) and the importance of regulators informing them of the consequences of non-attendance. The Judge reminds professionals that insight and remediation are nuanced, require a self-critical eye and cannot usually be assessed in the absence of the registrant.
Dr Kimmance (the appellant) was a registered doctor involved in a family dispute. During the course of the family proceedings he had sent various correspondences to public authorities about his circumstances.
The appellant was brought to the attention of the General Medical Council ("the GMC") as a result of that correspondence, which was said to be (amongst other things) of an offensive and threatening nature.
The GMC Fitness to Practise Panel ("the panel") considered the allegations at a hearing which the appellant did not attend. The panel found the factual allegations against the appellant proven and went on to establish a finding of misconduct and impairment. Erasure was subsequently imposed.
The Honourable Mr Justice Kerr considered the appeal, which was made on a number of grounds. The appeal was dismissed and a number of the grounds are considered below.
1. Insight and non-attendance
One of the grounds for appeal was that the sanction was disproportionate in the circumstances of the case. The lack of clinical concerns was highlighted as a prominent absence to the Committee's findings.
Mr Justice Kerr acknowledged that the appellant's case was not linked to his clinical practice and there were no concerns of such. In dismissing this ground and determining that the sanction was proportionate, he held as follows [para 64]:
"…it is a misjudgement to suppose that this doctor's private life was under scrutiny, not his public and professional life, and to support that that because there was no clinical concerns about his practice, he could expect to continue working as a doctor after writing documents such as those that formed the subject of the charges."
Mr Justice Kerr also highlighted the inability of the Committee to examine the Registrant's insight and remediation efforts due to his non-attendance. It was held that words such as 'insight' and 'remediation' are nuanced and require "a doctor or other professional who has done wrong to look at his or her conduct with a self-critical eye, acknowledge fault, say sorry and convince a panel that there is a real reason to believe he or she has learned a lesson from the experience."
In Mr Justice Kerr's eyes, such a task cannot usually be undertaken in the absence of a registrant. He held that the "dangers of not attending a disciplinary hearing", in cases of serious misconduct, are in his view "close to professional suicide", echoing the earlier decision of Burrows v General Pharmaceutical Council  EWHC 1050 (Admin).
During the course of the GMC proceedings, reference was made to dishonesty by the case presenter despite no allegation of dishonesty being raised.
Mr Justice Kerr held that the references to dishonesty were 'irregular', ought not to have been referred to as an aggravating feature of the case and capable of being prejudicial to the appellant. Nevertheless, he determined that the irregularity was not a 'material irregularity' as the panel knew the essence of the wrongdoing, had reminded themselves that there was no alleged dishonesty and that the conduct – irrespective of an allegation of dishonesty – was of the nature to lead to a finding of erasure.
3. The panel was not informed of evidence favourable to the appellant
The GMC had received a positive testimonial regarding the Registrant that spoke to his personal and professional conduct in his employment as well as his quality of work. The testimonial, despite having been sought from the GMC as part of its individual investigations, was not put before the panel.
In the absence of the testimonial, the panel determined that there were no mitigating features in this case. It was submitted on behalf of the appellant that the failure to include the testimonial was a material irregularity. This was rejected by Mr Justice Kerr.
It was held that although it was an irregularity, "it did not render the proceedings as a whole unfair" and that "it is inconceivable that the letter would have led, or could realistically have led, the panel to conclude that suspension was an adequate response to the charges."
The decision highlights, in the simplest terms, the consequences for registrants of not attending hearings to answer questions about their fitness to practise, particularly in cases where a panel will want to satisfy themselves that the registrant has reflected upon their own conduct.
The decision also reminds registrants that scrutiny of a practitioner's professional life does not end on leaving the clinical setting. Registrants are subject to high standards and should expect to be reproached for conduct which impinges on their public and professional life.
The decisions also reminds regulators of the importance of ensuring that relevant information within their possession is put before panels, particularly so when dealing with unregistered and unrepresented registrants. Regulators must carefully consider allegations at the outset of their investigation and not seek to persuade panels to make findings about matters which have not been alleged, such as dishonesty.