Ali Abbas v General Medical Council  EWHC 51 (Admin)
Whilst this judgment is predominantly fact-specific; Mr Justice Nicol has reiterated a number of familiar principles, both in relation to the expeditious disposal of proceedings and the importance of the appeal courts being slow to interfere with a decision of a specialist tribunal.
Mr Justice Nicol repeats throughout the determination that the Tribunal, having heard and seen the witnesses, was best placed to reach its own determination on the evidence and were not wrong in their conclusions. Similarly, in relation to the use of video link, Mr Justice Nicol again held that it was a case management issue for the Tribunal who were not only entitled, but also best placed, to determine the issue.
The judgment also reiterates the importance of proceedings being dealt with expeditiously and is a reminder for all registrants, even if appearing in person, that they cannot expect a Tribunal to delay matters if they have chosen not to take advanced steps to prepare properly for the proceedings.
Finally, the judgment also reminds registrants that a finding of persistent dishonesty without evidence of insight is always going to place a registrant at risk of erasure.
The Appellant, a specialist registrar in general medicine, appeared before the Medical Practitioner's Tribunal Service ("Tribunal") in relation to matters including dishonesty and refusing to assist a patient.
The proven allegations were found to amount to misconduct and impairment. A sanction of erasure was subsequently imposed.
The Appellant appealed on a number of grounds, including:
- The Tribunal ought to have granted him an adjournment;
- Improper case management during the hearing;
- The sanction imposed was disproportionate.
The judgment is fact-specific, however Mr Justice Nicol in refusing the appeal, reiterated a number of familiar principles in relation to appeals, dishonesty and the importance of not unnecessarily delaying proceedings.
The Appellant was a specialist registrar in general medicine. In June 2016 he appeared before the Medical Practitioners’ Tribunal Service ("the Tribunal") in relation to a number of failings, including refusing to assist a patient who had collapsed, attitudinal concerns towards colleagues and patients and dishonesty in relation to his compliance with an interim conditions of practice order.
The Appellant represented himself at the Tribunal hearing. During the course of the hearing the Appellant sought three adjournments, one to allow time to obtain legal representation, a second due to missing papers, and a third (following the conclusion of the Council's case) to enable him to instruct an expert. All applications were refused.
The Tribunal also heard from a number of witnesses during the course of the hearing, including nurses who had worked with the Appellant and patients, one of whom having been granted permission by the Tribunal to give evidence via video link.
The Tribunal also heard that the Appellant had dishonestly, breached one of his interim conditions of practice and also given a dishonest account to the Interim Order Panel ("IOP").
The Tribunal found the majority of the allegations against the Appellant proven and, having established misconduct and impairment, deemed that erasure was the proportionate sanction and immediately suspended the Appellant's registration.
The appeal was heard on 12 January 2017. The Appellant advanced a wide range of arguments in support of his application as summarised below:
- The Tribunal was wrong to reject his applications for adjournments.
- He was given insufficient time to cross-examine the Council's expert.
- The evidence against him was from the treating nurses and not the doctors.
- The Council's expert (Dr Turkington) was biased in the evidence given against him.
- The Council's expert was wrong in some of his evidence to the Tribunal.
- The Tribunal ought not to have allowed some witnesses to give evidence via video link.
- The Tribunal did not take sufficient notice of threats made to him by Patient B and his family and the reasonable steps taken by the Appellant to avoid a confrontation
- Further individual criticisms of evidence against him.
- The sanction of erasure was disproportionate.
Mr Justice Nicol, in determining the appeal, reminded himself of the principles outlined by Sir Stephen Silber in the case of Gosalakkal v General Medical Council  EWHC 2445 in relation to the courts giving due regard to the specialist nature of professional tribunals and that tribunals have the benefit of hearing and seeing the witness evidence.
The case of Naheed v GMC  EWHC 2022 (Admin) was also cited in relation to the likely sanction of erasure being imposed in cases of dishonesty, particularly where it is persistent and combined with a lack of insight, as was Belal v GMC  EWHC 2859 (Admin) in relation to the seriousness of dishonesty towards the IOP, and by extension, the GMC as regulator.
In determining to refuse the appeal, Mr Justice Nicol outlined why each of the above arguments did not persuade him that the Tribunal had erred or that the decision was unjust. Whilst the majority of the decision is fact specific, the following principles can be drawn out from the judgment:
In relation to the Appellant's requests to the Tribunal to adjourn the hearing to obtain legal representation, Mr Justice Nicol said as follows at :
"… he provided no evidence of his efforts to obtain such representation. The Tribunal was also entitled to observe that the allegations against the Appellant were serious and there was a public interest in dealing with them expeditiously. The Tribunal was entitled to reach the view that fairness to both parties (including the Appellant) did not require him to be given a further opportunity to seek representation."
Similarly in relation to the Appellant's arguments regarding the Tribunal's decision to refuse an adjournment in order for him to instruct an expert, Mr Justice Nicol said as follows at :
"…Dr Tukington's first report had been served approximately 18 months before the hearing. The Tribunal was plainly entitled to decide that, if the Appellant had wished to rely on expert evidence in rebuttal, it was incumbent on him to take steps to obtain it long before the close of the GMC's case."
In relation to the Appellant's argument that it was wrong for the Tribunal to allow evidence of a witness by video link, Mr Justice Nicol said at :
"Since the Tribunal had a discretion to allow a witness to give evidence in this manner, whether it should do so or not was a case management issue with which this court would be very slow to interfere. Of course, the hearing must still be fair to the parties, but the Appellant did not, and could not have, argued that the decision to allow Ms Mutlow to give evidence via video link led to the hearing being unfair."
In relation to the assertion by the Appellant that the finding of dishonesty was wrong, Mr Justice Nicol held that the Tribunal, having heard the evidence of the Appellant and undertaken their own assessment of his explanation, were open to accept his account or not. He held that they were entitled to the conclusions they reached as the Tribunal hearing the evidence and were not wrong to reach such.
Further, in response to the Appellant's argument that the sanction imposed was disproportionate, Mr Justice Nicol said as follows at :
"As the authorities I have cited make clear, where, as in this case, there has been persistent dishonesty, erasure is a likely sanction. It may be otherwise if there is insight or some other combination of circumstances which would mean a lesser sanction would be appropriate.
However, on the findings that the Tribunal made and was entitled to come to, he had been dishonest, not just on one occasion, but on a number of them and over a considerable period. He had dishonestly misled the IOP and he had dishonestly breached conditions on his registration. In those circumstances, it would have been surprising if the Tribunal had concluded that a lesser sanction than erasure was appropriate."