Lawrance v General Medical Council  EWCH 586 (Admin)
Dr Lawrance ["the Appellant"] appealed against a decision of the General Medical Council's ["GMC"] Medical Practitioners Tribunal Service ["MPTS"] given on 28 April 2014. A finding of dishonesty was made against the Appellant which led to an erasure from the register.
The Appellant appealed against the finding of dishonesty and against the fact that the MPTS panel proceeded in her absence. The appeal was allowed on both points. Mr Justice Collins' Judgment reiterated the caution to be exercised by fitness to practise panels when proceeding in the absence of a party and how there are different stages during a hearing at which, a registrant can be invited back to give evidence. Mr Justice Collins also provided some commentary on how evidence should be viewed in cases of dishonesty.
The case brought against Dr Lawrance ["the Appellant"] by the General Medical Council ["GMC"] arose from a referral made about her husband; Dr Moneim. Dr Moniem was referred to the GMC by an NHS Primary Care Trust following a falling out with his fellow partners working at one of two GP practices belonging to Dr Moneim. The case against Dr Moneim involved allegations of retrospective amendments to patient records and dishonesty; Dr Moneim was eventually suspended from the Register for 12 months.
The Appellant became involved in the matter when the PCT investigating Dr Moniem requested the practices' message books in order to review the doctor notes and actions taken. Upon reviewing the message books they returned these into the care of the Appellant who in turn was supposed to return the books to Dr Moniem's practices. Instead, the Appellant retained the books, allegedly to use these in order lodge a complaint at the GMC against one of the partners (Dr Underwood – who had complained about her husband).
When questioned whether she had retained the books for the above purpose, the Appellant denied this and claimed that she had been working as a locum at Dr Moniem's practice and thus required the books for her own use. A subsequent claim was lodged at the County Court by the practice partners to get the books back. The Circuit Judge heard witness evidence in regards to the Appellant's intentions in holding on to these books and he was persuaded that apart from two occasions in March 2005, the Appellant was not engaged to work for the GP practice in question. However he did not find the Appellant dishonest as he said that he could not exclude the possibility that the Appellant was deputising for her husband and any work that she may have done may have been recorded in his name.
Following the Circuit Judge's findings a referral was made to the GMC regarding the Appellant's conduct. The Appellant was represented in the early stages of the Fitness to Practise ["FtP"] proceedings by the Medical Practitioners Service ["MPS"]. However, the MPS notified the GMC in December 2013 that they were no longer representing the Appellant.
The Appellant engaged in her FtP hearing which began on 22 April 2014. She had not requested that any of the witnesses attend the hearing, but equally she would not accept their evidence as being accurate. She believed that she could attend herself, give evidence and show through her evidence that the witnesses were unreliable.
During the hearing the Appellant spoke to the Legal Assessor and expressed that she felt unable to cross-examine the witnesses. The Legal Assessor noted to the panel that the Appellant did not "physically feel able to cross examine or ask questions of the witnesses". This was in relation to the Appellant's medical history of suffering from extreme nausea which sometimes required medical treatment. An adjournment application followed these submissions.
The panel was directed in accordance with Tait v RCVS  UKPC 34 and R v Jones  QB 862 and  2 WLR 524. The MPTS panel agreed an overnight adjournment for the Appellant to seek legal representation. The Appellant was provided with pro bono contacts.
The Appellant attended the following morning and stated that she could not obtain representation and she felt that what had happened at the hearing yesterday was unfair and that it would be further unfair for the panel to continue with the hearing. The Appellant then got up and left the building.
The panel decided that the Appellant had voluntarily waived her right to attend or be represented at the hearing. They proceeded in her absence and determined that she had acted dishonestly and the appropriate sanction was an erasure from the Register.
The Appellant appealed the decision on the following grounds:
i. The decision to proceed in her absence was unfair.
ii. The panel should not have found the facts against her proved; and
iii. The panel should not have found dishonesty.
iv. The sanction of erasure was too harsh.
Handed down by Mr Justice Collins.
Collins J considered this case to be one whereby the Appellant had allegedly committed perjury which, in itself is a very serious allegation and in order to be proven, the panel would have had to have found corroboration. Collins J determined that even though the Circuit Judge had found against the Appellant in that on the balance of probabilities he preferred the evidence against her. This did not mean that it should be taken that the Judge had found dishonesty.
Collins J said that the Legal Assessor should have directed the panel that they should only find dishonesty established if they were satisfied that there was cogent evidence of dishonesty. The civil standard applies, but where dishonesty or a particularly serious offence is alleged, the decision makers must be aware of the need for such cogent evidence.
On the issue of proceeding in the absence, Collins J found that the panel could have decided to proceed to hear to evidence from the witnesses but it was not precluded from notifying the Appellant of the outcome of their factual findings for her to then attend and give evidence on the issue of dishonesty.
Collins J had no doubt that the panel ought to have considered the Appellant's evidence on dishonesty prior to imposing any sanction as clearly no effort was made to obtain any evidence of mitigation. In light of this, Collins J noted that it is difficult to see how the panel was able to conclude that the Appellant might be dishonest in the future.
The panel having found dishonesty, took the view that it was a particularly serious finding and was fundamentally incompatible with being a doctor. Collins J noted that the dishonesty found had nothing to do with patient safety. It was however regarded as being "persistent dishonesty" by the panel as the Appellant had maintained her case at the hearing which was not previously believed in the County Court. Collins J said that this could not be right. He stated that there was no doubt in his mind that the Appellant being disbelieved in a civil suit would not in itself undermine the trust the public place in the medical profession.
Collins J concluded by saying that he had no doubt that if it was left to him, he would regard the sanction of erasure as "excessive". He said that the panel had erred in its finding of dishonesty and in failing both before finding dishonesty and particularly before deciding on sanction to contact the Appellant to invite her to attend to make representations. The appeal would therefore be allowed and the case sent back to the panel.