General Medical Council v Adeogba

A professional disciplinary panel may proceed in a practitioner's absence once it is satisfied that all reasonable efforts have been made to serve notice. Its discretion must be exercised with great care and with overall fairness in mind. Fairness to the practitioner is a prime consideration, but fairness to the regulator and the public interest in effective, expeditious regulation also matter.

The criminal-law guidance on absence is a useful starting point, adapted to the regulatory context. A practitioner who knows of an investigation but deliberately disengages, or fails to maintain effective contact details, cannot ordinarily secure an adjournment merely by failing to receive communications. On an appeal by way of re-hearing, fresh evidence remains exceptional. The Ladd v Marshall principles continue to govern the discretion, although evidence explaining non-attendance may require consideration.

Two factually unconnected appeals by the General Medical Council were heard together. In each case, a Fitness to Practise Panel proceeded in the absence of the doctor, found allegations proved, and erased the doctor from the medical register.

The Administrative Court allowed the doctors' appeals and ordered fresh hearings: [2014] EWHC 3872 (Admin) in respect of Dr Adeogba and [2014] EWHC 4531 (Admin) in respect of Dr Visvardis. It held that the respective Panels should not have proceeded in their absence.

The central issues were the correct exercise of the discretion under rule 31 of the General Medical Council (Fitness to Practise) Rules 2004, and the proper approach to fresh evidence on an appeal under the Medical Act 1983.

1. Appeals allowed. The Administrative Court had been wrong to interfere with either Panel's decision to proceed in the doctor's absence. The Panel orders were restored. The remaining grounds of appeal, confined to the evidence before each Panel, were remitted to the High Court.

2. Rule 31 requires the Panel first to be satisfied that all reasonable efforts have been made to serve notice in accordance with the Rules. If that condition is met, the Panel must exercise its discretion with great care and by reference to overall fairness. The guidance in R v Jones and the qualified guidance in R v Hayward, R v Jones, R v Purvis is a useful starting point. It must, however, be adapted to professional regulation. Fairness to the practitioner is of prime importance, but fairness to the GMC and the public interest in prompt and effective regulation must also be weighed.

3. A regulator cannot compel a practitioner's attendance as a criminal court can compel a defendant's. Practitioners have a corresponding responsibility to engage with their regulator and to maintain an effective registered address. The GMC's responsibility is to communicate through the registered means of contact. It is not ordinarily required to make speculative enquiries of overseas authorities or former colleagues when a practitioner has failed to provide updated details.

4. Dr Adeogba knew of the investigation and suspension, but left the country, ceased engagement, and made no arrangement to receive communications. The Panel was entitled to find that an adjournment would not secure attendance. The absence of his input on facts, impairment and sanction was significant, but could not override all other considerations or create a premium on non-co-operation. His later explanation could be received de bene esse, but disclosed no sufficient reason for his failure to participate and did not justify reversing the Panel's decision.

5. Dr Visvardis had notice of the allegations and hearing, but chose a collateral challenge to the process instead of participating in case management or the hearing. He could have attended, sought an adjournment, or renewed his position after learning that his cancellation application had failed. The Panel was entitled to conclude that his non-participation was deliberate and that an adjournment would not be effective.

6. An appeal under section 40 is described as a re-hearing, but it is not a fresh trial. Fresh evidence is not admitted as of course. The Ladd v Marshall conditions remain central, read consistently with the overriding objective. The absence of a review mechanism and the public importance of a striking-off decision are relevant factors, but do not alone justify departure from those principles. Evidence explaining non-attendance may be fresh evidence; evidence on the merits which could have been advanced before the Panel will ordinarily stand differently.

• Court of Appeal (Civil Division): The GMC's linked second appeals were allowed. The orders for fresh hearings were set aside and the respective Fitness to Practise Panel decisions to proceed in absence were restored: [2016] EWCA Civ 162.
• Administrative Court: In the appeal concerning Dr Adeogba, the court admitted fresh evidence, held that the Panel should not have proceeded in his absence, and ordered a fresh hearing: [2014] EWHC 3872 (Admin).
• Administrative Court: In the appeal concerning Dr Visvardis, the court held that the Panel should not have proceeded in his absence and ordered a fresh hearing: [2014] EWHC 4531 (Admin).