Sanusi v General Medical Council

In professional disciplinary proceedings, a tribunal may ordinarily proceed to sanction when a respondent who is aware of the hearing voluntarily fails to attend. Fairness remains fact-sensitive. A regulator is not required to conduct the absent professional’s case, but it must take reasonable steps to avoid inadvertently misleading the tribunal, including by producing relevant mitigation documents in its possession. This duty is particularly important where the professional is unrepresented and erasure is possible. A procedural irregularity affects the outcome only if the omitted material would or might reasonably have made a difference. The appellate court must show appropriate deference and must not conduct a re-sentencing exercise. Serious dishonesty, lack of insight, difficulty demonstrating remediation and the need to preserve public confidence may justify erasure despite an irregularity that did not affect the result.

Dr Sanusi appealed against a decision of the Medical Practitioners Tribunal Service dated 18 October 2017, which found serious misconduct, impaired fitness to practise and ordered erasure from the medical register. He had not attended the substantive hearing, although he submitted written representations. The tribunal did not see various documents held by the General Medical Council, including a favourable report concerning his GP training, when considering mitigation and sanction.

The appeal concerned whether the tribunal should have adjourned to invite Dr Sanusi to attend before considering sanction, whether the GMC had failed to place relevant documents before the tribunal, whether further evidence should be admitted, and whether any procedural irregularity made the erasure decision unjust.

1. Appeal dismissed. The court upheld the order erasing Dr Sanusi’s name from the medical register.
2. The appellate approach required deference to the specialist tribunal. The court could correct a material error or serious procedural irregularity, but should not conduct a re-sentencing exercise or substitute its own view on sanction. Dishonesty was particularly serious because it threatened public confidence, and lack of insight made erasure more likely.
3. There was no unfairness in the tribunal’s decision not to adjourn and contact Dr Sanusi before considering sanction. The reasoning in General Medical Council v Adeogba [2016] 1 WLR 3867 confirmed that fairness was a prime consideration, assessed on the facts. In this disciplinary context, it would rarely be unfair to proceed directly to sanction where a doctor had voluntarily remained absent despite knowing of the hearing. Sukul v Bar Standards Board [2014] EWHC 3532 (Admin) and Lawrance v General Medical Council [2015] EWHC 586 (Admin) were confined to their facts and applicable disciplinary regimes, or their reasoning had been partly overtaken by Adeogba.
4. The GMC did, however, have a duty to inform the tribunal about relevant documents in its possession that had been sent by the absent doctor. That duty was less stringent than the duty of candour in an application made without notice, but included taking reasonable steps to avoid misleading the tribunal by omission. The content of the duty depended on the procedural rules, the doctor’s engagement with the process, representation, awareness and other circumstances. The principles concerning candour in In re Stanford International Bank Ltd [2011] Ch 33, described as authoritative in R (Unaenergy Group Holding Pte Ltd) v Director of the Serious Fraud Office [2017] 1 WLR 3302, provided an analogy.
5. The tribunal should have been given the relevant mitigation material, particularly the August 2017 report from Dr Roberts. That omission amounted to a potential procedural irregularity. It nevertheless caused no unfairness affecting the result. The charges were serious, Dr Sanusi had shown little acceptance of responsibility, the material was largely tangential, and the evidence did not realistically address the absence of insight, the difficulty of remediation in a dishonesty case or the need to protect public confidence. The erasure decision therefore stood.

• Medical Practitioners Tribunal Service: On 18 October 2017, found serious misconduct and impaired fitness to practise and ordered erasure from the medical register.
• High Court (Administrative Court): Appeal dismissed; the tribunal’s erasure decision upheld.