Professional disciplinary appeal sets out lessons for registrants and regulators

The potentially serious consequences for registrants of a failure to attend disciplinary proceedings was confirmed in the recent appeal of Sanusi v General Medical Council [2018] EWHC 1388 (Admin), which also highlighted some key points for regulators and registrants:

• It is not necessary for a tribunal to pause the hearing at the sanction stage in a case of a non-attending registrant to invite their attendance

• Documents never made available to the regulator or created after the hearing will not be taken into account when produced for the court in an appeal

• Relevant evidence provided by a non-attending registrant to the regulator should be put before the hearing by the regulator

• Regulators should make the consequences of non-attendance very clear in their communications with the registrant

The allegations

Dr Sanusi had practised at Friarage Hospital, Northallerton from 2010. During the course of his work at the hospital, a number of allegations of misconduct were made regarding various patients. In July 2015 he applied for a new job with Rotherham NHS Foundation while under notice of dismissal from his previous employer. He failed to mention the disciplinary charges during the job application process. In January 2017 the GMC informed Dr Sanusi that a number of the allegations regarding misconduct at Friarage and those relating to the subsequent job application were to be referred to the Medical Practitioners Tribunal.

The hearing

The hearing set down for 20 days began on 2 October 2017. Dr Sanusi did not attend the hearing and was not legally represented, having previously cited financial constraints. He did provide a written statement to the tribunal. Prior to the hearing, Dr Sanusi had failed to provide a formal response to the GMC’s formal request for any supporting documents for the hearing, although he had emailed a number of documents in the months prior to the hearing which were not before the tribunal.

The tribunal found a large proportion of the allegations proved, found that the allegations amounted to misconduct and found that Dr Sansusi’s fitness to practise was impaired. Given the seriousness of the charges taken as a whole, the tribunal chose to erase Dr Sanusi’s name from the Register.

The appeal

Dr Sanusi appealed to the court on the issue of sanction. Two issues fell to be decided by the court:

1) Whether it was appropriate for the tribunal to proceed to sanction without adjourning the hearing to invite Dr Sanusi to make submissions on this point; and

2) Whether the court could allow additional evidence, including that previously provided by Dr Sanusi, to be considered as part of the appeal on sanction.

Proceeding in the absence

The judge, Mr Justice Kerr, made clear that professionals facing serious disciplinary proceedings court peril by failing to attend hearings in person. He referred to his previous decision in Burrows v Pharmaceutical Council [2016] EWHC 1050 (Admin), where he had noted:

“In a case of obvious dishonesty, not attending the hearing amounts virtually to courting removal.”

Mr Justice Kerr noted that the cases relied on by Dr Sanusi, which suggested that in certain circumstances the tribunal should pause at the sanction stage, were isolated, first instance decisions from different regulatory regimes. Furthermore, they pre-dated (and were not in accordance) with the leading Court of Appeal decision in General Medical Council v Adeogba [2016] 1 WLR 3867 where Leveson LJ held that it would rarely be unfair for a tribunal to proceed straight to the question of sanction.

And Mr Justice Kerr made the position clear, saying:

“…in the context of the disciplinary jurisdiction exercised by MPTS tribunals in the case of doctors, it will rarely be unfair for a tribunal to proceed straight to the question of sanction, rather than pausing to invite attendance from a defendant who has, up to that point, hitherto voluntary absented himself.”

On this basis, the court made no criticism of the tribunal’s decision to conclude proceedings in Dr Sanusi’s absence. It was noted, however, that it appeared Dr Sanusi had not appreciated the potential gravity of his non-attendance and the judge suggested it may be beneficial for regulators to make very clear that failure to attend could lead to suspension or erasure without the registrant having any opportunity to provide their own evidence.

Evidence not before the original tribunal

On the question of the further evidence which Dr Sanusi submitted should be considered by the court in the appeal on sanction, Mr Justice Kerr noted that the evidence fell into three categories:

1) Documents sent to the regulator but not put before the tribunal;

2) Documents which existed at the time of the hearing but which had not been sent in by Dr Sanusi; and

3) Documents created after the tribunal hearing took place and were now put before the court

In respect of the second and third category, the court found no possible basis for allowing these documents to be considered on appeal. To do so would confer an unfair advantage on the doctor and essentially provide him with a second attempt to achieve a different result on sanction. It was the doctor’s responsibility to deploy what documents he wished to rely on at the hearing before the tribunal.

In respect of the first category, the court found that an extensive trawling of the database by the regulator to find evidence of benefit to the registrant was not what was required. However, Mr Justice Kerr made it clear that where a registrant had sent in information which was intended for the panel to see and the registrant wasn’t going to be in attendance or represented, the regulator had a duty to make sure that information was seen by the panel.

Having decided that particular material should have been before the panel, the court then had to decide what effect this should have in respect of the sanction of erasure which had been imposed. In this case, Mr Justice Kerr found that the additional evidence would not have realistically led the tribunal to come to a different decision on sanction, and, on that basis, dismissed the appeal.

Commentary

There are important lessons within this judgment both for professionals facing regulatory proceedings and for regulators investigating complaints and preparing for the hearing.

Professionals must understand the potential effect of failing to attend their regulatory hearing. Without taking the opportunity to present their own case (or be represented), there is a significantly increased chance of a serious sanction. While it may be inconvenient for a registrant to attend a hearing, particularly if it is set down for a number of days, it is important for them to be aware that their livelihood may be on the line.

It is also important to note that it is not necessary, or a requirement, to pause proceedings at the sanction stage where a registrant is not in attendance to allow them the opportunity to attend and/or make submissions

Additionally, in providing a fair hearing for non-attending registrants, regulators are to provide relevant evidence from a registrant, even if that evidence has not provided in the correct manner or format.

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