08 August 2019

A recent decision in the Court of Appeal, Sanusi v The General Medical Council 2019, affirms the position that doctors who do not attend fitness to practise hearings can still face erasure.

Background

Due to clinical and dishonesty concerns, Dr Sanusi was referred to the GMC. In October 2016 the GMC sent Dr Sanusi a list of charges to which Dr Sanusi responded along with some supportive mitigation documentation including a reference from his clinical supervisor.

The GMC convened a hearing before the Medical Practitioners Tribunal (“the Tribunal”). Dr Sanusi received a Notice of Hearing stating that if he did not attend, and was not represented, the Tribunal could made a decision about his case in his absence and that if his fitness to practise was found to be impaired a sanction could be imposed. Dr Sanusi advised the GMC he would not be attending the hearing.

The hearing commenced on 2 October 2017 and proceeded in Dr Sanusi’s absence. Many, but not all, of the factual allegations were found proven and findings of serious misconduct were made in relation to clinical care and dishonesty. When considering mitigation, the Tribunal stated it understood that Dr Sanusi was currently undergoing GP training but that no evidence was submitted in relation to this, despite this being recorded in the clinical supervisor’s reference.

As a result of the dishonesty allegation, the Tribunal determined that erasure was the appropriate sanction, noting that a doctor “who engages in dishonest conduct will invariably be at risk of erasure, and all the more so where the doctor does not engage with the hearing and acknowledge his dishonesty, show the potential for remediation or show any development of insight”.

The Tribunal’s decision in relation to sanction was appealed to the High Court, and the appeal was dismissed.

Court of Appeal

Dr Sanusi appealed to the Court of Appeal (“the Court”) on two grounds, both of which were dismissed. He firstly asked the Court to consider whether the Tribunal ought to have adjourned and / or contacted him, before proceeding to the sanction stage, to enquire if he wished to attend or make written representations. Upholding the decision of the High Court, the Court concluded that there is no general obligation on the Tribunal to adjourn or to provide a registrant with the opportunity to make submissions in mitigation of sanction once adverse findings have been made against that registrant.  The judgment states:

“…in a case where a registrant chooses not to attend a tribunal hearing (for good or bad reason) he or she must be taken to appreciate that if adverse findings are made, they will not be in a position to address the tribunal on matters of mitigation… and will be entirely reliant on any written submissions or representations made…in advance of the hearing.”

The High Court Judge found that not all mitigation material submitted to the GMC in the lead up to the hearing had been put before the Tribunal. The second issue considered by the Court was whether the Judge was right to find that the sanction process was not rendered unfair by this failure. While recognising the procedural failing on the part of the GMC, the Court reviewed the information which could have been before the Tribunal and concluded that there was nothing contained in the missing material which would have made a difference, and that erasure was inevitable.

This case serves as a reminder of the importance of defence documentation and that registrants and representatives must fully consider the potential effects of failing to attend regulatory proceedings.

 Contact: Jennifer King, Associate jki@bto.co.uk T: 0141 221 8012