Adu v General Medical Council [2014] EWHC 1946 (Admin)

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Mr Adu, a paediatric specialist, appealed against the decision of the Fitness to Practise Panel's decision that his fitness to practise was impaired by reason of deficient professional performance. The Panel ordered that Mr Adu's name should be erased from the register. Mr Adu appealed on the basis of two headings, that (1) he did not receive a fair hearing before the Panel and (2) the sanction imposed was manifestly excessive.

The first of the two grounds stemmed from disclosure made during the first day of the hearing, during which, the Legal Assessor informed the Panel and parties present of matters regarding health problems one of his children encountered and subsequent concerns over the medical care that child received. This gave Mr Adu an opportunity to argue that the facts disclosed called into question the Legal Assessor's impartiality and therefore he should recuse himself. The Panel heard submissions from both parties and decided that the circumstances were not such that the Legal Assessor should recuse himself. The Panel's decision was reasoned and made reference to R (Compton) v Wiltshire Primary Care Trust (No 2) [2009] EWHC 1824. Mr Adu's appeal raised concerns about the potential bias of the Legal Assessor.

The appeal came before Warby J who on reading the papers, noted that the Legal Assessor was a person well known to him as a fellow member of chambers for 20 years of which he was until recently, a member. Warby J also noted that there remained a professional relationship in that he was editing a textbook to which the Legal Assessor is a contributor and that there had been some social contact over the years through their membership of chambers.

Warby J outlined that the legal principles on the matter were clear and that the Court or tribunal deciding the case should be and be seen to be impartial, that is to say, lacking in actual or apparent bias. In determining whether there was apparent bias on the part of the Court, Warby J looked to the authority laid down by the House of Lords in Porter v Magill [2002] 2 AC 357 that is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the Court was biased.

He invited submissions from both parties on the issue. Mr Adu submitted that Warby J should recuse himself because of the length and closeness of the professional association between Warby J and the Legal Assessor, coupled with the importance to his case of the complaint he makes about the Legal Assessor.  The Respondent submitted that the test for apparent bias was not satisfied however accepted that it might make a difference if Mr Adu was making a complaint which went beyond apparent bias and included an argument of actual bias.

Warby J concluded that he should recuse himself. In doing so, he highlighted the threshold for real possibility of bias as not an especially high one. He said that "The fair-minded observer knowing the relevant facts would see a possibility that, in applying what should be an objective test, I would bring to bear my subjective impressions of the individual's character and personality." He also noted the approach of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 and commented that he was very conscious of the risk of being too ready to accede to an application for recusal. (see [13], [15], [16], [21] of the judgment)