TZ v General Medical Council

A fitness to practise panel may receive further evidence after circulating an embargoed draft of its factual findings, provided the findings have not yet been publicly announced under the applicable procedural rules. The panel must exercise that discretion judicially, having regard to the evidence’s relevance, the reason for its lateness, its potential effect on the draft findings, the consequences for the hearing, and the interests of justice. The Ladd v Marshall principles inform that discretion but do not constitute an inflexible code. Where refusal to consider material evidence creates a real risk of injustice and the evidence could have affected the outcome, the court may quash the disciplinary decision and remit the case for rehearing.

The appellant appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision finding misconduct, impairment of fitness to practise and directing erasure from the medical register. After the parties’ evidence and closing submissions, the Panel circulated an embargoed draft of its factual findings. Before those findings were formally announced, the appellant supplied transcripts of evidence from two witnesses who had given evidence at his earlier criminal trial and asked that they be considered.

The Panel concluded that it had no power to reopen its factual findings and refused to admit the evidence. The central issue was whether the Panel retained a discretion to receive and consider further evidence before formally announcing its findings of fact, and whether the refusal caused a real risk of injustice.

1. Appeal allowed in part. The court upheld the appeal on the refusal to admit the Health Care Assistant’s evidence, quashed the direction for erasure and remitted the case to the Registrar for referral to a new Fitness to Practise Panel for rehearing. The challenge concerning alleged procedural impropriety failed. No final view was expressed on the factual allegations.
2. Under rule 17(2)(i) of the Fitness to Practise Rules, factual findings are announced when formally given in public. Circulating an embargoed draft is not an announcement. Until that stage, the Panel was not functus officio and retained power to consider whether further evidence should be received.
3. The discretion is implicit in the Rules and must be exercised judicially. Relevant considerations include the evidence’s relevance, why it was not called earlier, its significance against the draft findings, the effect on the hearing and witnesses, and whether justice would be done if it were excluded. The discretion is not routinely exercised merely because a party dislikes the draft findings.
4. The principles in Ladd v Marshall remain relevant, particularly where the evidence was available earlier, but they are not an inflexible or solely determinative test. The public interest in reaching the correct result in professional disciplinary proceedings is a material consideration, especially where erasure is possible.
5. The Health Care Assistant’s evidence was plainly relevant to the timing and nature of the physical examination, contradicted important aspects of the complainant’s account, and potentially undermined the Panel’s reliance on CCTV timings. A properly directed Panel might have admitted it, and it could have affected the outcome. The boyfriend’s evidence added little, although it could be admissible on any rehearing.
6. The Panel’s refusal to consider the application was based on an erroneous view of its jurisdiction and created a real risk of injustice. The Respondent was ordered to pay the appellant’s costs of £4,091.50 within 28 days.

The judgment does not state the citation of any earlier decision in the same disciplinary proceedings. The appeal was brought to the High Court under section 40 of the Medical Act 1983 against the Fitness to Practise Panel’s decision.