Kimmance v General Medical Council

A regulatory tribunal member’s professional background does not ordinarily create an appearance of bias. Without personal animus or a personal connection with the case, a generic objection based on professional association is insufficient.

Dishonesty or other serious wrongdoing must be clearly alleged and particularised before it may be proved or relied on as aggravation. An irregularity will justify intervention only if it materially affects fairness or the outcome. Failure to place favourable mitigation before a tribunal is improper, but will not necessarily invalidate a sanction where the conduct makes the result inevitable. Serious, persistent and unremedied misconduct may justify erasure even where it is unrelated to clinical treatment.

Dr Simon Kimmance appealed against a Fitness to Practise Panel’s decision finding ten charges proved, determining that his fitness to practise was impaired and erasing his name from the medical register. The charges concerned offensive, threatening and harassing correspondence sent to public bodies and individuals, including correspondence said to breach county court injunctions.

The appeal challenged the panel’s alleged bias, references to dishonesty, failure to consider favourable evidence, consideration of uncharged correspondence, the treatment of terms such as offensive and threatening, and the proportionality of erasure. The central issues were whether any procedural irregularities rendered the proceedings unfair and whether erasure was proportionate.

1. Appeal dismissed. The panel’s refusal to recuse itself was justified. The objection rested only on the professional backgrounds of two members and a general grievance against lawyers and social workers. In the absence of personal animus or another personal connection with the case, that did not raise an arguable appearance of bias. The court applied the principles in Porter v Magill [2002] 2 AC 357 and Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451.
2. References to dishonesty were irregular, irrelevant and capable of prejudice. Dishonesty, or other serious wrongdoing, must be clearly alleged and particularised if it is to be proved. The charges concerned offensive and threatening language and harassment, whether or not the allegations communicated were true. The panel nevertheless understood that dishonesty was not charged and the irregularity did not materially affect the outcome.
3. The omission of a favourable employment testimonial was also an irregularity. It should have been available to the panel and would have been relevant in mitigation. It did not render the proceedings unfair because the seriousness of the misconduct made suspension an unrealistic alternative. The court warned that omission of such evidence might justify quashing a sanction in a borderline case.
4. The panel was entitled to consider uncharged correspondence when assessing insight, remediation and sanction. The words offensive, threatening and constituting harassing behaviour were properly given their ordinary everyday meaning. No technical or expansive definition was required.
5. Erasure was proportionate. The relevant considerations included persistent and seriously offensive conduct towards public bodies and named individuals, breaches of two injunctions, lack of insight and the absence of remediation. The absence of clinical concerns did not prevent the conduct from undermining public confidence in the medical profession. The court added that attendance at a disciplinary hearing is ordinarily important because the panel may need to assess insight, acknowledgement of fault and remediation.

The appeal was dismissed.

• High Court (Administrative Court): the appeal against the Fitness to Practise Panel’s decision was dismissed. No lower-court citation was stated.