Dr Sarah Barbara Myhill v General Medical Council

In a statutory appeal concerning a disciplinary review, undisturbed findings of professional misconduct are subject to issue estoppel. A review tribunal cannot reopen or retry those findings. Fresh evidence may nevertheless be admitted in special circumstances through the Ladd v Marshall route, the wider Arnold discretion, or, where applicable, a procedural power admitting evidence that would not be admissible in court.

The applicant must show, among other matters, that the evidence could not reasonably have been obtained earlier and that it is credible and materially influential. The Bolam test concerns clinical negligence and is not the governing test for professional misconduct. Evidence showing only disagreement with established findings, without balanced and independent support, does not justify reopening them.

This was a statutory appeal under section 40 of the Medical Act 1983 from a Medical Practitioners Tribunal review decision continuing the appellant’s suspension. The appellant applied for fresh evidence intended to challenge earlier findings that she had committed serious professional misconduct and that her fitness to practise was impaired.

The original tribunal had proceeded in her absence, found misconduct relating principally to the promotion of vitamin and other agents for viral and bacterial infections, and imposed a suspension with review. The appellant did not appeal those findings within the statutory 28-day period. At the review, the tribunal refused evidence and witnesses directed to proving that the original findings were wrong, and concluded that she lacked insight, had not remediated the concerns and presented a risk of repetition.

The central issue was whether the fresh evidence could overcome issue estoppel and be admitted in the statutory appeal.

1. Application refused. The fresh evidence did not satisfy any applicable route to admissibility. The appeal would proceed on the material before the Review Tribunal.
2. Findings of fact on professional misconduct which were made by a competent disciplinary tribunal, were not appealed and were not subject to an application for an extension of time, attract issue estoppel. A review hearing is not a retrial or an appeal. The review tribunal must proceed on the basis of the earlier findings and has no power to go behind them unless a recognised exception applies.
3. Under Ladd v Marshall, the appellant had to establish reasonable diligence, apparent credibility and probable important influence. Most of the material could have been obtained and presented at the original hearing or the review hearing. The later material was largely repetitive, argumentative, self-serving or unsupported by independent and balanced expert evidence. It was not shown that it would probably have influenced the findings of misconduct or impairment.
4. The Arnold route permits fresh evidence in special circumstances where it could not reasonably have been discovered earlier and would put an entirely different complexion on the issue. Those requirements were not met. The evidence did not materially alter the case and lacked the credibility and objectivity necessary to change its complexion.
5. The appellant’s reliance on Bolam was misplaced. Bolam concerns clinical negligence. Professional disciplinary proceedings require assessment against the published standards of professional conduct. In any event, the material did not establish that the appellant’s views represented a responsible body of skilled medical opinion.
6. Rule 34(1) of the General Medical Council (Fitness to Practise) Rules 2014 permits a review tribunal to admit evidence that would not be admissible in a court of law. It did not provide a route for admitting such evidence in the High Court’s statutory appeal, which is itself conducted by a court of law.
7. The court did not need to determine the respondent’s alternative abuse-of-process argument because issue estoppel applied and the recognised routes for disapplying it had failed.

• High Court (King’s Bench Division): fresh evidence application in the statutory appeal refused. The remainder of the appeal was adjourned for determination on the existing material.
• Medical Practitioners Tribunal: original tribunal found serious professional misconduct, impairment and imposed a nine-month suspension with review.
• Medical Practitioners Tribunal: review tribunal continued the suspension for a further 12 months after finding continuing impairment.