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

The power to appoint a replacement member of a professional disciplinary panel may extend beyond the panel’s initial constitution. Its exercise is subject to the interests of justice, proper purpose and fair procedure, including giving the parties an opportunity to make representations.

Where a replacement member has not heard substantial live evidence, the panel must adopt a fair and rational procedure. A rehearing by a partly original and partly new panel may create unacceptable differences in the members’ evidential perspective, particularly where the original members hear the case against the practitioner again. In such circumstances, a freshly constituted panel may be required.

Dr Michalak sought judicial review of decisions made by the General Medical Council Registrar and Fitness to Practise Panel during lengthy disciplinary proceedings. After approximately 34 hearing days and evidence from about 28 witnesses, the medical member became unavailable. The Registrar appointed a substitute, and the panel decided that all witnesses should be heard again by the substitute together with the two original members.

The claimant challenged both the Registrar’s power to substitute a panellist and the fairness and rationality of the proposed procedure.

1. Power to substitute. The GMC Constitution of Panel Investigation Committee Rules 2004 conferred power under Rule 4 to select panel members. The power was not expressly limited to the initial appointment and could in principle be exercised during proceedings where a panel member became unavailable or ineligible.
2. Limits on the power. Rule 7(2)’s reference to the interests of justice properly informed the exercise of the Rule 4 power. Substitution also had to be for a proper purpose and follow fair procedures. The parties should ordinarily be told what was proposed and why, and given an opportunity to make representations. The panel itself had responsibility for ensuring that its procedures remained fair.
3. Proposed rehearing. The panel was entitled to conclude that merely reading transcripts would not adequately address the importance of live evidence. However, its proposed solution was unfair and irrational. The two original members would hear the prosecution evidence for a second time, while the replacement member would hear it only once. That could produce materially different assessments of the evidence and tension within the panel.
4. Appropriate course. The court identified no substantial advantage in retaining the two original members which outweighed those disadvantages. A fresh panel would also provide an opportunity to constitute a five-member panel and reduce the risk of a further loss of quorum during the lengthy hearing. The Registrar’s substitution decision and the panel’s decision on how to proceed were quashed. The matter was remitted to the GMC to determine the lawful course of the disciplinary proceedings.
5. The claimant lost on the existence of the substitution power but substantially succeeded overall. The court awarded 80 per cent of the claimant’s costs.