Sanusi v The General Medical Council

A medical disciplinary tribunal has no general duty to adjourn before sanction, or to seek further representations, from a registrant who has voluntarily chosen not to attend. The discretion must be exercised fairly in all the circumstances, including the interests of the regulator and the public in efficient disposal of disciplinary allegations. A compelling reason, such as unchallenged medical evidence of incapacity, may require a different course.

The regulator and tribunal must take reasonable steps to ensure that objectively relevant mitigation material supplied by an absent registrant is available at sanction. A procedural failure warrants intervention only if a fair process could realistically have produced a different outcome. Serious deliberate dishonesty, combined with no insight or remediation, may make erasure inevitable.

The Medical Practitioners Tribunal found that Dr Sanusi had committed serious clinical misconduct and had dishonestly misled a prospective employer about his dismissal and disciplinary history. It found his fitness to practise impaired and directed erasure from the medical register. He did not attend the hearing, although he had been notified that it could determine facts, impairment and sanction in his absence.

Kerr J dismissed his appeal against sanction: [2018] EWHC 1388 (Admin). Dr Sanusi appealed on two grounds. He contended that the Tribunal should have paused before sanction to invite mitigation, and that erasure was procedurally unfair because the General Medical Council had not placed all his mitigation documents before the Tribunal.

The central issues were whether fairness required a pre-sanction adjournment and whether the missing material could have affected the sanction.

1. Appeal dismissed unanimously. The Tribunal was entitled to proceed to sanction without adjourning or contacting Dr Sanusi. Under the regulatory framework established by Medical Act 1983 and the Fitness to Practise Rules, there is no general obligation to provide a registrant who has voluntarily absented himself with a further opportunity to make mitigation submissions after adverse findings.

2. Applying GMC v Adeogba, the discretion whether to proceed must be exercised with fairness to the practitioner as a prime consideration, but also with fairness to the General Medical Council and the public interest. The criminal-trial criteria for proceeding in absence are a useful starting point, but must be adapted to the regulatory context. A doctor who elects not to attend must be taken to understand that adverse findings will leave him reliant on written material submitted in advance. An adjournment may be appropriate where there is a compelling justification, such as unchallenged medical evidence that the registrant cannot attend.

3. Dr Sanusi had notice of the allegations, the hearing and the possible sanctions. He voluntarily chose GP training rather than attendance, did not seek leave or an adjournment, and knew the hearing would address sanction. He also made written submissions relevant to reflection and sanction. Reconstituting the panel would have been disruptive and costly. There was therefore no good reason to interrupt the hearing before sanction.

4. There was nevertheless a procedural irregularity. Natural justice required the General Medical Council and the Tribunal to take reasonable steps to ensure that relevant mitigation material supplied by an absent doctor was before the Tribunal. The obligation is confined to reasonable searches for objectively relevant material; it does not require an extensive trawl through unindexed documents.

5. The irregularity could not affect the result. The test for a “no difference” outcome is exacting: it must be shown that a fair procedure would inevitably have produced the same decision. Dr Roberts’s reference showed satisfactory performance and some reflection in GP training, but did not address the proven deliberate dishonesty, acknowledge wrongdoing, or demonstrate insight or remediation. The remaining material added nothing material. Given the serious dishonesty, lack of insight and need to maintain public confidence, erasure was in practical terms inevitable.

• Court of Appeal (Civil Division): dismissed the appeal against erasure: [2019] EWCA Civ 1172.
• High Court, Administrative Court: Kerr J dismissed the appeal against the Tribunal’s sanction decision: [2018] EWHC 1388 (Admin).
• Medical Practitioners Tribunal: found serious misconduct and impairment, and directed erasure from the medical register on 18 October 2017.