Adjourning fitness to practise proceedings on health grounds – No culture of adjournment

In overturning the decision of the High Court, the Court of Appeal’s decision in General Medical Council v Hayat [2018] EWCA Civ 2796 makes clear the evidential challenges facing a registrant who seeks an adjournment of fitness to practise proceedings due to their ill-health. In the Court of Appeal’s judgment, Coulson LJ set out a clear summary of the relevant case law making this a decision which is likely to be cited in any adjournment application of this sort.

In the High Court Dr Hayat had successfully challenged the decision of the MPT to proceed in his absence. However, the Court of Appeal determined that the High Court had erred and identified 11 separate reasons for reaching that conclusion.

The judgment sets out a helpful summary of the relevant case law. The Court was clear that the Tribunal considering an application for an adjournment is entitled to consider a wide-range of factors, and to assess the medical evidence in support of the application in the context of the wider procedural history of the case. Here, Dr Hayat made three unsuccessful adjournment applications on other grounds before making a further application on health grounds. The public interest was also a relevant factor.

The Court considered the nature and standard of the evidence required in support of an application and the threshold for interfering with a Tribunal’s decision on appeal. The Tribunal received a sick note from an unidentified doctor indicating that Dr Hayat was not fit for work. However, the Tribunal also had more detailed medical evidence, including evidence from a treating hospital doctor, to the effect that Dr Hayat was fit to attend the hearing. Criticising Lang J’s apparent reliance on the fact that the sick note post-dated other evidence indicating that Dr Hayat was fit, Coulson LJ went on to observe:

“Lang J compounded this error by saying…that, applying the authorities, evidence of the kind set out in the sick note “ought generally to result in adjournment.” That is incorrect.”

Noting that an adjournment decision involves the exercise of the Tribunal’s discretion, Coulson LJ observed that “this court would have to be satisfied that a high hurdle has been surmounted before it intervenes”; the Tribunal would “have to be wrong before the appellate court intervened.” Lang J had erred in deciding the adjournment application de novo; “this was impermissible.”

Coulson LJ concluded:

“…the decision to refuse to adjourn the hearing was a discretionary matter, properly made by a specialist tribunal on the basis of all the evidence. It was a decision to which the Tribunal was entitled to come…speaking for myself, I consider that it was the correct decision in any event.”

The Court also noted that a successful challenge to a Tribunal’s decision not to make further enquiries before refusing an application for an adjournment on health grounds, the registrant would need to demonstrate that those further enquiries would have resulted in the grant of the adjournment.

Comment

As with so many appeal judgments, this case emphasised the importance of getting the right decision first time around. When contemplating an application for an adjournment on ill health grounds the following points are particularly important:

  1. The onus to establish a proper evidential basis for the adjournment is on the Registrant making the application.
  2. The evidence should include the expression of an independent medical opinion based on an appropriate examination.
  3. A proforma sick note may well be insufficient to excuse attendance at a hearing;
  4. The evidence adduced should identify the registrant’s medical condition and how and why any particular features of that condition mean the registrant is unable to take part in the hearing;
  5. The evidence should address the issue of likely prognosis;

Tribunals have a discretion to seek further evidence but are not under a duty to do so. It should be borne in mind that the most appropriate application in the first instance may be for a short adjournment to permit the necessary medical evidence to be obtained. Such an approach is likely to get short shrift if reliance is being placed on a longstanding health condition.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.