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

In disciplinary proceedings, a tribunal may admit judgments from earlier proceedings where they are reasonably capable of providing relevant background, forensic context or prima facie evidence of background facts. The tribunal must decide the issues before it for itself and must not treat the earlier judgments as proof that the expert’s evidence was professionally deficient or as a substitute for its own assessment. Any prima facie factual evidence must remain rebuttable.

On judicial review of an interlocutory ruling, fairness is assessed independently by the court, while considerable weight is given to a specialist tribunal’s assessment of relevance and prejudice. Allegations must be particularised sufficiently to enable a fair defence. A schedule of evidence or draft opening statement cannot cure fundamentally inadequate particulars.

The claimant, a consultant paediatric neuropathologist, challenged two decisions of a Fitness to Practise Panel of the General Medical Council. The first admitted redacted judgments from six earlier child-protection and criminal proceedings in which the claimant had given expert evidence. The second held that allegations concerning the scope, accuracy and presentation of her evidence were adequately particularised.

The judicial review concerned whether the earlier judgments were relevant and fair evidence at the fact-finding stage, and whether the allegations gave sufficient notice of the case to be met. The court also considered whether intervention before completion of the disciplinary hearing was appropriate.

1. Interlocutory intervention. The general principle is that challenges to tribunal decisions should ordinarily await the conclusion of the proceedings and be pursued by statutory appeal. Intervention may nevertheless be appropriate where a major procedural error in a lengthy and complex hearing would cause a clear and significant injustice unlikely to be remedied during the hearing. That threshold was met sufficiently for the court to determine the issues.
2. Standard of review. Fairness is a question for the reviewing court’s independent judgment, although substantial weight is due to the view of a specialist tribunal advised by a legal assessor. Relevance and probative value are assessed with greater respect for the tribunal’s judgment, particularly before the tribunal has used the evidence in the completed proceedings.
3. Earlier judgments. Rule 34(1) of the Fitness to Practice Rules 2004 permitted evidence which the Panel considered fair and relevant, whether or not admissible in court. The redacted judgments were relevant to the background, forensic context, medical issues and potential significance of the claimant’s evidence, and could provide prima facie evidence of background facts. They were not admissible to establish the correctness of the judges’ criticisms, the rejection of the claimant’s evidence, the cause of death or the truth of the misconduct allegations.
4. The Panel had to make its own findings on the quality and propriety of the claimant’s expert evidence. Any factual material taken from the judgments remained rebuttable. The Panel’s approach to relevance, prejudice and redaction was reasonable and fair. The admissibility challenge therefore failed.
5. Particulars. The “wrap up” allegations were confined to conduct alleged in the preceding allegations. Some particulars concerning the evidence relied upon and the research papers required clarification. Allegations based on papers described as “including” were too wide unless all relied-upon papers were identified. Allegation 3, concerning omissions and inaccuracies, was hopelessly inadequate and required particulars identifying the matters relied upon. The claim succeeded to that extent, with the GMC required to reconsider the particulars.