Dr Richard Freeman v General Medical Council

On an appeal against a professional disciplinary sanction, the appellate court must decide whether the tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity. Where a witness leaves before cross-examination is complete, fairness is assessed in the round. The court should consider whether there was a good reason for the absence, whether the evidence was the sole or decisive basis for the finding, and whether counterbalancing safeguards maintained a fair hearing. A witness’s genuine perception of unfairness may constitute a good reason where it has an objective and understandable basis. The appellate court must remain cautious about disturbing primary findings of fact and credibility, while retaining a greater freedom when drawing inferences from established facts.

The appellant, a doctor, appealed under section 40 of the Medical Act 1983 against the direction that his name be erased from the medical register. The appeal concerned earlier determinations by the Medical Practitioners Tribunal, including its refusal to exclude evidence from a witness who left during cross-examination, and its findings that the witness was credible and consistent.

The appellant challenged the Tribunal’s treatment of the absent witness, its assessment of bullying and its treatment of the appellant as a vulnerable witness, the construction of one disciplinary allegation, and the alleged reversal of the burden of proof.

1. The appeal was dismissed. The Tribunal’s decisions were neither wrong nor unjust because of a serious procedural or other irregularity.

2. The governing appellate approach was that under CPR 52.21(3). The appeal was appellate rather than supervisory, and the court could substitute its own decision where appropriate. Under Sastry v GMC [2021] EWCA Civ 623, the court had to decide whether the sanction was appropriate and necessary in the public interest or excessive and disproportionate. In reviewing fact-finding, the court had to correct material errors but remain extremely cautious about disturbing primary findings based on witness credibility. It had greater freedom when drawing inferences from established facts, applying GMC v Jagjivan [2017] EWHC 1247 (Admin).

3. The Tribunal correctly applied the three questions derived from Al Khawaja v UK (2009) 49 EHRR 1 and R (Bonhoeffer) v GMC [2011] EWHC 1585 (Admin): whether there was a good reason for the witness’s absence; whether the evidence was the sole or decisive basis for the finding; and whether sufficient counterbalancing safeguards preserved overall fairness.

4. The Tribunal was entitled to treat the witness’s perception of unfairness and bullying as relevant to the first question. It properly considered whether that perception was genuine and whether it had an objective and understandable basis. The Tribunal also considered alternative explanations for the departure, the absence of a witness summons and the later refusal to return.

5. The witness’s evidence was not sole or decisive. The admitted dishonesty and ordering of Testogel, expert evidence, documentary material and evidence from other witnesses provided a substantial evidential context. The Tribunal also allowed the appellant to identify unasked questions and adduce material capable of undermining the witness’s account. The resulting safeguards were sufficient when the fairness of the proceedings was assessed in the round.

6. The Tribunal was entitled to describe the witness as credible and consistent despite finding his behaviour intemperate. It had considered the limitations caused by the incomplete cross-examination and gave adequate reasons for rejecting the evidence advanced against his credibility.

7. The Tribunal did not reverse the burden of proof in finding the allegation proved. The appellant had unequivocally identified the relevant non-athlete member of staff as the intended patient. The Respondent therefore had to prove that the Testogel was not clinically indicated for that person; it did not have to disprove every possible non-athlete recipient.

8. The Tribunal’s treatment of the appellant as a vulnerable witness, its reasoning about bullying in 2011, and its treatment of the expert evidence disclosed no material error or perversity. The appellant was ordered to pay the Respondent’s costs, summarily assessed at £23,000.

• Medical Practitioners Tribunal: found the allegations proved, found the appellant’s fitness to practise impaired, and directed erasure from the Register on 19 March 2021.
• High Court (Administrative Court): dismissed the statutory appeal under section 40 of the Medical Act 1983.