Mahfouz, R (on the application of) v General Medical Council

Prejudicial publicity does not automatically make professional disciplinary proceedings unfair. Fairness must be assessed objectively in the context of the proceedings as a whole. Relevant considerations include the tribunal’s experience, its ability to disregard inadmissible material, the availability of legal advice, the passage of time, the different nature of earlier misconduct, and the likely effect of oral evidence. Where the tribunal’s impartiality is not itself challenged, subjective confidence and the fair-minded observer assessment will generally lead to the same conclusion. A tribunal should generally proceed and leave procedural challenges to an appeal. However, fairness and the appearance of fairness may require a short adjournment to enable an urgent judicial review application in special circumstances.

Dr Fayez Mahfouz appealed from Davis J in the Administrative Court, who had rejected his challenge to two decisions of the General Medical Council Professional Conduct Committee. Four committee members had seen newspaper reports referring to his earlier striking-off and other matters outside the evidence. The Committee refused to discharge itself and later refused a short adjournment so that Dr Mahfouz could seek judicial review. The hearing continued in the absence of Dr Mahfouz and his representatives until the High Court granted an interim stay. The central issues were whether the Committee could fairly continue and whether fairness required the requested adjournment.

Appeal allowed in part. The challenge to the Committee’s refusal to discharge itself was dismissed. The challenge to the refusal of an adjournment was allowed.

1. Where breach of fairness or natural justice is alleged, the appellate court must make its own independent judgment. The issue is one of law, not fact, and review is not confined to Wednesbury principles. The court adopted the approach stated in R v Panel on Takeovers and Mergers ex p Guinness plc [1991] QB 146 and Rose v Humbles [1972] 1 WLR 33 (para [19]).
2. There is no absolute rule that knowledge of prejudicial publicity is fatal to fairness. The effect of inadmissible material must be assessed in the context of the tribunal and the proceedings as a whole. The Court of Appeal treated the analysis in Montgomery v H.M. Advocate [2003] 1 AC 641 as the more helpful starting point and regarded the GMC’s specialist procedure, the Committee’s experience, independent legal advice, the long interval since the earlier case, its unrelated nature, and the likely impact of oral evidence as important factors. A fair-minded and informed observer would not conclude that there was a real possibility of bias (paras [22]–[29]).
3. Where the Committee’s impartiality is not itself in question, there is generally no practical distinction between its subjective assessment that it can decide fairly and the objective fair-minded observer assessment. The possibility of subconscious prejudice must be considered, but the test need not be glossed by separate references to conscious and unconscious bias (paras [29]–[33]).
4. By way of further guidance, the legal assessor should provide advice on the answer to a fairness issue, rather than merely pose questions. The ultimate decision remains that of the Committee under the applicable rules (paras [34]–[37]).
5. Although proceedings should generally run their course and validity challenges be left to appeal, there is no inflexible rule. On the particular facts, fairness and the appearance of fairness required a short adjournment. The issue arose at the beginning of an eight-day hearing, had required detailed argument, involved an apparent difference between the Committee and its legal assessor about the governing test, and required the continued involvement of counsel familiar with the case (paras [38]–[45]).
6. The matter was left to a newly convened Committee acting on legal advice. It was directed that the case be decided solely on the evidence before the Committee and that the 1987 disciplinary decision and other matters reported outside the hearing be disregarded (paras [46]–[47]).

• Court of Appeal (Civil Division) allowed the appeal to the limited extent stated in [2004] EWCA Civ 233.
• Administrative Court—Davis J rejected the challenges to the Committee’s refusal to discharge itself and refusal to grant an adjournment.
• General Medical Council Professional Conduct Committee refused the application for discharge and the subsequent application for an adjournment.