The fitness to practise process: risks of non-engagement

General Medical Council and Olufemi Adeogba & General Medical Council and Evangelos-Efstathios Visvardis Court of Appeal (Civil Division) [2016] EWCA Civ 162

Practitioners should take note of the recent Judgement dated 18 March 2016 by Sir Brian Leveson, Lord Justice Gross and Sir Stanley Burnton.

The appeals concerned the approach adopted by Fitness to Practise Tribunals to proceeding with disciplinary hearings in the practitioner’s absence and the approach to be adopted to the admission of new evidence on an appeal to the High Court.

Both Dr Adeogba and Dr Visvardis failed to attend their scheduled fitness to practise hearing. Dr Adeogba had not updated his registered address with the GMC to reflect his relocation from Germany to Nigeria and he therefore had not received the GMC correspondence notifying him of the hearing. Dr Visvardis had received the relevant correspondence, but had sought to challenge the disciplinary process and had stated that he would refuse to participate until his concerns had been addressed.

In both cases the Tribunals exercised their discretion under Rule 31 of the General Medical Council (Fitness to Practise) Rules 2004 to proceed in the practitioner’s absence. Both practitioners were erased from the Medical Register in their absence and successfully appealed to the High Court.

In separate hearings, His Honour Judge Graham Wood QC (in the case of Dr Adeogba) and His Honour Judge Bird (in the case of Dr Visvardis), found that the Tribunal had been wrong to proceed in the absence of the practitioner and ordered fresh hearings to be conducted.

The GMC successfully appealed those judgements to the Court of Appeal.

The following key points emerge from the judgment of Leveson P, with which Gross LJ and Sir Stanley Brunton agreed:

  • Registrants have an obligation to ensure that they maintain an up-to-date registered address. Leveson P described Dr Adeogba’s failure to update his registered address when he was aware of an ongoing GMC investigation as “an egregious failure to comply with his regulatory obligations.”
  • In considering whether to proceed in the practitioner’s absence “it is important that the analogy between criminal prosecution and regulatory proceedings is not taken too far.” The court noted that “a culture of adjournment is to be deprecated.”
  • “The fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance.”
  • The main objective of the GMC in exercising its functions is to protect, promote and maintain the health and safety of the public. It therefore could not be permitted for a hearing to be relisted in circumstances where a practitioner had deliberately failed to engage in the process given the consequential cost and delay to other cases.
  • Neither Muscat v Health Professions Council [2009] EWCA Civ 1090 nor TZ v GMC [2015] EWHC 1001 should be read as warranting a more relaxed approach to the admission of new evidence on appeal than the long established approach in Ladd v Marshall.


Conclusion

Practitioners should ensure that their registered address is up-to-date. Practitioners must bear in mind that if they do not participate in the Tribunal hearing and adduce evidence which is available and relevant to their defence, they are unlikely to be permitted to adduce that evidence in any appeal against the Tribunal’s decision.

For more information please contact:

Stewart Duffy
Partner

T. 020 7227 7418
E.stewart.duffy@rlb-law.com


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.

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