El-Baroudy, R (on the application of) v The General Medical Council

In a disciplinary appeal, a practitioner may be tried only on the allegations and facts particularised in the hearing notice, unless the notice is properly amended. Evidence directed to an uncharged issue, such as causation, should not be admitted or allowed to influence findings of impairment or sanction where that issue materially enlarges the case against the practitioner. A serious procedural irregularity arises where the tribunal relies on such evidence. The appropriate remedy may be to quash the findings on impairment and sanction and remit those issues to a fresh panel, while expressing no view on the outcome.

Dr El-Baroudy appealed under section 40 of the Medical Act 1983 against findings of impairment and erasure imposed by a Fitness to Practise Panel. The allegations concerned failures in the clinical assessment of a detainee, AR, who later died. The charges alleged serious failures in care but did not allege that the misconduct caused AR’s death or caused the loss of a real chance of survival.

The appeal raised whether evidence and reasoning concerning causation had improperly been admitted and relied upon in determining impairment and sanction, and what relief should follow.

1. Appeal allowed on a limited basis. The appeal was brought under section 40 of the Medical Act 1983, under which the court would interfere only if the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. Rule 15(2)(a) required the notice of hearing to particularise the allegation and the facts on which it was based. Consistently with Roomi v GMC, Strouthos v London Underground Limited and Chauhan v GMC, the practitioner faced the allegations contained in the notice and no additional allegation unless the notice was amended in accordance with rule 17(3). Evidence should therefore have been confined to the particulars charged.
3. The charges did not allege that Dr El-Baroudy caused AR’s death or caused the loss of any real chance of survival. Evidence directed to those issues should not have been led, and the Panel should not have allowed causation to affect impairment or sanction.
4. The Panel’s references to the tragic outcome and to an opportunity for AR to survive showed that causation had influenced both the impairment decision and the decision to erase. The judge also considered that the evidence did not establish that any real opportunity for meaningful survival had been lost.
5. This constituted a serious procedural irregularity rendering the findings on impairment and sanction unjust. The findings were quashed and those issues were remitted to a fresh Panel. The fresh Panel was directed to proceed on the basis that causation of death and loss of any real chance of survival were not alleged, and to disregard evidence directed to those issues. No view was expressed on the outcome before the fresh Panel.
6. The direction for immediate suspension fell away upon quashing the direction for erasure. Costs were summarily assessed at £12,000 plus VAT.

The judgment does not state the earlier tribunal’s citation. The Fitness to Practise Panel found the allegations proved, found impairment, and directed erasure. The High Court allowed the appeal to the limited extent of quashing the findings on impairment and sanction and directing a rehearing.