D v General Medical Council

A professional disciplinary tribunal may proceed in a practitioner’s absence where notice was properly served and the practitioner deliberately chooses not to attend. The discretion must be exercised with close regard to the overall fairness of the proceedings. The court must assess the hearing as a whole, including whether the absence caused material prejudice.

Where material evidence relevant to sanction is mistakenly withheld from the tribunal, the proceedings may be unfair even though the error was not deliberate. A failure to disclose a criminal conviction, subsequently quashed, did not in the particular circumstances amount to serious professional misconduct.

The appellant appealed against findings by a Fitness to Practise Panel that he was guilty of serious professional misconduct and against the erasure of his name from the Medical Register. The Panel had proceeded in his absence after refusing an adjournment sought because his chosen representative was unavailable.

The appeal challenged the fairness of the hearing, the treatment of several charges as serious professional misconduct, the inclusion of a charge concerning failure to disclose a conviction, and the proportionality of erasure. The central issues were whether the hearing was fair under Article 6, whether the Panel had erred in its treatment of the charges, and what consequential order should follow.

1. Proceeding in the appellant’s absence. The Panel had discretion under Rule 23 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 to proceed where service was established. The appellant had known the hearing dates for several months, could attend personally, and had not taken reasonable steps to secure alternative representation. The Panel was therefore entitled to refuse the postponement and proceed in his absence. The reasoning in R v Jones [2002] UKHL 5 applied.
2. Overall fairness. Article 6 required the proceedings to be assessed as a whole. The complaints about evidence, alleged bias, hearsay, discrepancies and the Panel’s handling of the case did not establish unfairness or material prejudice. However, the GMC mistakenly failed to place all five testimonials before the Panel. The missing material was relevant to the risk of repetition and to the exceptional sanction of erasure. The proceedings were consequently unfair in that respect.
3. Professional misconduct. The Panel was entitled to conclude that the alteration of an official document, repeated inappropriate and intimidating conduct towards colleagues, and paid work undertaken during suspension fell seriously short of the standards expected of a registered medical practitioner. The High Court’s function on a section 40 appeal was appellate and secondary, although it retained power to correct material errors of fact or law and to reassess the application of legal principles. The approach in Fatnani v General Medical Council [2007] EWCA Civ 46 was instructive.
4. Failure to disclose conviction. In the particular circumstances, including that the conviction had been quashed before the Panel’s decision, failure to report it did not amount to serious professional misconduct.
5. Disposition. The appeal was allowed only in those respects. The finding of serious professional misconduct concerning charge 24 was quashed. The issue of sanction was remitted to the Panel for reconsideration entirely afresh. The court expressed no view on whether erasure was disproportionate or whether a separate opportunity for representations on sanction was required.

The judgment does not identify a separate lower-court judgment. The appeal was from the Fitness to Practise Panel’s decision dated 14 September 2006.