Gopakumar v General Medical Council

A legal assessor assisting a medical disciplinary panel is not equivalent to a judge directing a criminal jury. The panel receives legal advice but remains responsible for law and fact. An error in the assessor’s advice invalidates the decision only where its significance to the result justifies that conclusion.

A disciplinary panel may take a practitioner’s good character into account when assessing credibility and propensity. The assessor need not reproduce a criminal jury direction or give an enhanced direction. Fresh evidence will ordinarily be refused where experienced legal advisers possessed the material and made an informed decision not to deploy it.

A general practitioner appealed against Underhill J’s dismissal of his statutory appeal from a Fitness to Practise Panel. The Panel had ordered his erasure from the medical register after finding serious professional misconduct involving two female patients.

The Court of Appeal granted limited permission on two issues. First, it considered whether the legal assessor’s advice about the practitioner’s and witnesses’ good character was inadequate. Secondly, it considered whether evidence concerning one complainant’s previous drug use and police caution should be admitted as fresh evidence. The practitioner also sought further disclosure and an adjournment to pursue additional inquiries into the complainant’s character.

1. Appeal dismissed unanimously. The Court also refused the applications for further disclosure and an adjournment.

2. The proposed character material was already available to the practitioner’s experienced solicitors and counsel. Their decision not to use it before the Panel was informed and understandable. Reliance on a minor caution and historic drug use could have damaged the practitioner’s case, particularly because the complainant had not been accused of lying. A party’s assertion that legal advisers failed to adduce available evidence does not ordinarily justify its later admission. The principles concerning fresh evidence remained applicable in this form of appeal: E v Secretary of State for the Home Department [2004] EWCA Civ. 49 and Ladd v Marshall applied.

3. A Fitness to Practise Panel is not analogous to a criminal jury. Under Schedule 4 paragraph 7 of the Medical Act 1983, a legal assessor advises the Panel on questions of law. The Panel is not bound to follow that advice and remains master of law and fact. Consequently, advice which might constitute a criminal jury misdirection does not necessarily invalidate a disciplinary decision. The governing question is whether the advice was sufficiently significant to the result to invalidate the decision. Libman v GMC [1972] AC 217 and R (Campbell) v GMC [2005] EWCA Civ. 250 were followed.

4. The legal assessor gave both limbs of the good-character direction for the practitioner: credibility and propensity. He was not required to reproduce the mandatory criminal direction discussed in R v Aziz [1996] 1 AC 41, nor to give an enhanced direction. In the absence of contrary evidence, he could tell the Panel to treat all witnesses as being of good character. The advice was fair and cast no doubt on the Panel’s decision.

5. It was unnecessary to determine the wider evidential question. The Court nevertheless observed that evidence of a witness’s good character may be admissible in civil proceedings where relevant to an issue or credit, subject to the general rule against bolstering a witness’s credit before a rebuttable attack.

• Court of Appeal (Civil Division): Dismissed the practitioner’s appeal and refused his applications for further disclosure and an adjournment: [2008] EWCA Civ 309.
• High Court, Queen’s Bench Division (Administrative Court): Underhill J dismissed the practitioner’s appeal under section 40 of the Medical Act 1983 from the Panel’s erasure decision. No citation is stated.
• Fitness to Practise Panel: Found two charges of serious professional misconduct proved and directed that the practitioner’s name be erased from the medical register.