Nicholas-Pillai v General Medical Council [2015] EWHC 305 (Admin)

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Nicholas-Pillai v General Medical Council [2015] EWHC 305 (Admin) saw an appeal brought by a doctor erased from the register following a finding of the Fitness to Practice Panel of deficient professional performance. The Appellant appealed his erasure on the grounds that: the panel's findings of fact underpinning the deficient professional performance were wrong; that the conclusion on sanction was wrong; and lastly that his legal counsel was incompetent which deprived him of a fair hearing. The appeal was dismissed in its entirety.

Facts

The Appellant's appeal against the decision of the General Medical Council ["GMC"] Fitness to Practise Panel ["FPP"] was first brought in February 2013, however due to illness the hearing was adjourned twice. In October 2014 ahead of the renewed hearing date, the Appellant stated that he wished to raise a new ground of appeal, namely that his legal counsel, Mr Joseph, was incompetent and this had deprived him of having a fair hearing.

The Court adjourned again and issued directions for both parties in order to ensure that sufficient evidence was collected in regards to the new ground of appeal. Neither party fully adhered to these directions, which left the Court in January 2015 having to deal with conflicts of evidence between that provided by the Appellant and that contained within a witness statement taken from Mr Joseph. Nonetheless the appeal ensued and the Court considered the facts behind the FPP hearing.

The Appellant had an FPP history in that he was suspended for six months back in June 2008 as a result of an allegation of misconduct and a finding of current impairment. Concerns were once again brought to the attention of the GMC regarding the Appellant in April 2009 and a panel of the Interim Orders Committee suspended the Appellant once again, until the conclusion of the new FtP investigation.

Enfield PCT raised concerns in April 2009 regarding deficiencies in the Appellant's practice and in response to this, the GMC invited the Appellant to undergo a performance assessment. The Appellant underwent the assessment and was found to have failed in three key areas: assessment of patients' condition; providing or arranging treatment; and record keeping. His clinical performance was found to be "unacceptable" and his performance was found to be "deficient". The FPP hearing took place between 14 and 25 January 2013 and the FPP determined that the Appellant should be erased from the Register.

The Appellant's representative, Mr Joseph appeared for the Appellant on day 1 of the FPP hearing, he then removed himself for the remainder of the hearing. There was a conflict in the evidence provided by both parties as to why this happened, with Mr Joseph stating it was because he was "professionally embarrassed" by the conduct of the Appellant throughout the hearing.

Judgment

Handed down by Mrs Justice Elisabeth Laing.

Laing J acknowledged the existence of the conflict of evidence between the statements provided by Mr Joseph and the Appellant and stated that she was left with "no option by to examine the conduct of Mr Joseph, despite the fact he was not present at the hearing to defend himself". In looking at Mr Joseph's conduct, Laing J considered that irrelevant of whether or not Mr Joseph revealed his incompetence to the Appellant ahead of the FPP hearing, it was clear from the transcript that he was "completely out of his depth".

Mr Joseph also made fundamental errors of advocacy in that he took instructions from the Appellant on the charges as they were read out in front of the FPP in public. He further took instructions from the Appellant on a possible conflict whereby the Chair of the FPP knew the lead performance assessor in public.

Laing J concluded that Mr Joseph's behaviour was "Wednesbury" unreasonable. His withdrawal from the case meant that the Appellant was left with no choice but to cross-examine the GP medical assessors himself or to instruct new lawyers. Laing J considered R (B) v Hampshire County Council [2004] EWHC 3193 (Admin) in that grounds of appeal relating to incompetence of counsel involves an undesirable form of satellite litigation which is to be discouraged. Further to this, the test as to whether there was incompetence was a strict one in that it must be demonstrated that no other reasonable advocate would have acted in that way and whether this incompetence caused the hearing to be unjust (R (Aston) v Nursing and Midwifery Council [2004] EWHC 2368 (Admin)).

Laing J found that, although Mr Joseph had demonstrated "Wednesbury" unreasonable conduct, she did not believe that this made the hearing, or the decision reached, unjust. Firstly this FPP allowed the Appellant the opportunity to appoint fresh counsel and he did not take that opportunity. Further to this, the transcript demonstrated that the FPP went out of their way to ensure that the hearing was fair. Laing J commented that the Appellant was an "intelligent, well-educated professional" who was medically competent to conduct the cross-examination of the GP assessors.

As regards the potential conflict with the Chair of the FPP knowing the lead assessor, Laing J found that the evidence of the lead assessor was not "crucial" in this case and the fact that the Chair knew the legal assessor when they had worked together eight years ago was not "material" to satisfy the Porter v Magill [2001] UKHL 67 test.

In relation to the challenges on the factual findings and proportionality of sanction, Laing J stated that, in her opinion, the FPP was not wrong to reach the view which it did on deficiency. The FPP considered the question of sanction with exemplary care and it gave meticulous reasons for its right conclusion. She stated: "The Appellant's almost total lack of insight, coupled with his failure to show more than minor attempts at remediation meant that erasure was all but inevitable."

The appeal was dismissed in its entirety.

Keziah Pearson
Solicitor