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

A professional disciplinary tribunal may proceed in a defendant’s absence only with great caution and close regard to the overall fairness of the proceedings. Involuntary illness or incapacity ordinarily provides much stronger grounds for adjournment than deliberate absence. Where a practitioner is hospitalised during the hearing, the tribunal must not infer deliberate non-attendance merely from imperfect co-operation or the absence of medical evidence which it has made no proper effort to obtain. At a minimum, independent evidence from treating medical staff should be obtained as to fitness to attend, unless the tribunal has properly established that the absence was deliberate.

A Fitness to Practise Panel ordered the claimant’s erasure from the medical register after finding serious professional misconduct. The claimant had attended near the hearing venue but was then admitted to hospital with chest pain and did not participate in the hearing. The Panel continued in his absence, relying partly on the absence of medical evidence and his failure to provide information about his admission.

The claimant appealed, alleging procedural unfairness and error of law. The central issue was whether the Panel had been entitled to continue after learning that he was an in-patient and without obtaining independent medical evidence about his condition or fitness to attend.

1. Appeal allowed. The Panel’s decision to continue the hearing on 28 March 2006 was affected by a serious procedural irregularity. The matter was remitted to another Panel for a fresh hearing.
2. The governing approach was stated in [2003] 1 AC 1. A tribunal has a discretion to proceed in a defendant’s absence, but it must exercise that discretion with great caution and close regard to overall fairness. Involuntary illness or incapacity ordinarily provides much stronger grounds for resisting continuation than voluntary absence.
3. The Panel overstated the claimant’s conduct. The answer that he had nothing he wished to say about his admission did not establish that he refused consent to medical staff providing information about his condition. The absence of medical evidence was therefore unsurprising and could not properly be treated as a reason to continue when no adequate effort had been made to obtain it.
4. The Panel had not found, on proper grounds, that the claimant had deliberately absented himself or had sought hospital admission as a device to avoid the hearing. On the facts available, it could not properly conclude that his absence was deliberate. At a minimum, independent evidence from the treating medical staff was required to establish that he was fit to attend.
5. The Panel’s earlier decision to proceed when the claimant had attended near the venue and then disappeared was procedurally proper. The claimant’s own procedural defaults in bringing the appeal did not justify refusing an otherwise meritorious challenge. The defendant was ordered to pay two thirds of the claimant’s costs, subject to detailed assessment if not agreed.

• Fitness to Practise Panel: ordered the claimant’s erasure from the medical register after proceeding in his absence.
• High Court (Administrative Court): allowed the appeal, extended time where necessary, and remitted the matter to another Panel for rehearing.