Towuaghantse v General Medical Council (Rev 2)

In regulatory fitness-to-practise proceedings, a tribunal may admit material that would be inadmissible in ordinary civil litigation, provided it acts fairly and reaches its own decision. A registrant is entitled to contest allegations and put the regulator to proof. Except where the defence involves a clear finding of blatant dishonesty, the registrant’s forensic stance must not be treated as evidence of inadequate insight, inability to remediate, current impairment or an aggravating feature warranting a more severe sanction. Erasure may be justified despite the absence of a current patient-safety risk where necessary to maintain public confidence or proper professional standards, but the decision must remain procedurally fair. Where unfair reliance materially affects impairment and sanction, the appeal may be allowed in part and those stages remitted.

The appellant, a consultant paediatric surgeon, appealed under Medical Act 1983, section 40, against findings and sanction imposed by a Medical Practitioners Tribunal. The Tribunal found that his management of a newborn with exomphalos major had amounted to misconduct and that his fitness to practise was currently impaired. It ordered erasure from the medical register.

The appeal challenged, among other matters, admission of a coroner’s narrative conclusion, the independence of the GMC’s expert, disclosure of antenatal records, and the Tribunal’s reliance on the appellant’s denial of the allegations and failure to accept the coroner’s findings. The central issue was whether the impairment and sanction decisions were unfair because the appellant’s forensic defence had been treated as evidence of deficient insight and remediation.

1. Admissibility. Regulatory fitness-to-practise proceedings are inquisitorial. Under rule 34(1) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004, the Tribunal may admit evidence considered fair and relevant, whether or not admissible in court proceedings. The coroner’s narrative conclusion was therefore admissible, although the Tribunal had to reach its own decision and avoid unfair use of it. Ground 1 failed as to admissibility but succeeded in part on fairness.
2. Expert independence. An expert is not disqualified merely because of professional connections with witnesses or a party. Actual bias requires a direct, non-trivial personal interest in the outcome. Apparent bias requires a real danger of bias assessed by reference to the relevant circumstances. The Tribunal’s rejection of the challenge to the GMC expert was unimpeachable. Ground 2 was dismissed.
3. Disclosure. The Tribunal was entitled to conclude that the allegedly missing antenatal letter would not have added materially to the recorded evidence and would not have affected the impairment reasoning. Ground 4 was dismissed.
4. Forensic defence and remediation. It was procedurally unfair to treat the appellant’s having contested the allegations at the inquest or before the Tribunal, or his failure to accept the coroner’s conclusions, as evidence of inability to remediate or as an aggravating feature. A registrant may robustly defend allegations and put the GMC to proof. A balance-of-probabilities rejection of that defence does not, without more, amount to dishonesty. A different approach may be justified by a clear finding of blatant dishonesty or deliberate misleading.
5. Impairment and sanction. The Tribunal’s reliance on the appellant’s forensic stance materially informed both current impairment and erasure. The GMC had to show that the outcome would inevitably have been the same without the procedural irregularity; it was insufficient to show that the outcome was merely probable. The appeal was accordingly allowed in part. The impairment and sanction phases were remitted to the Tribunal for reconsideration without reference to the specified aspects of the appellant’s defence. No order for costs was made.

The judgment records an appeal under section 40 of the Medical Act 1983 from findings of misconduct, current impairment and erasure imposed by a Medical Practitioners Tribunal on 16, 18 and 20 November 2020.

The High Court allowed the appeal in part and remitted the impairment and sanction phases for reconsideration. The factual findings were left undisturbed.