Loufti v General Medical Council [2010] EWHC 1762 (Admin)
The claimant applied for judicial review of a
decision of the Investigating Committee (IC) of the GMC.
It was alleged that the claimant had committed
an assault against a colleague. The Trust, having previously
carried out its own investigation, had dismissed the claimant on
grounds of gross misconduct.
Under the GMC Fitness to Practice Rules 2004,
upon considering the referral, the Assistant Registrar wrote to the
claimant informing him that whilst the allegations raised questions
as to whether his fitness to practise was impaired, the case
examiners were minded to conclude the matter with a warning. The
claimant responded indicating that he did not accept the
allegations. Under the Rules, where a doctor disputes an
allegation, he is entitled to have the matter determined by the
IC.
In a subsequent letter to the claimant, the
Assistant Registrar set out the allegations. The matter then
proceeded to be considered by the IC in accordance with the
provisions of Rule 11(7) which allows for the presenting office on
behalf of the GMC to adduce any relevant oral or documentary
evidence and for the practitioner to respond, adducing any relevant
oral or documentary evidence. In this case the Committee received
documentary evidence submitted on behalf of the GMC, which
essentially consisted of those documents relied on as part of the
Trust's investigation. The GMC did not call any live evidence. The
claimant attended and gave evidence and was cross-examined.
The Committee found that the facts were more
likely to have occurred and that it was more likely that the
claimant had held down his colleague and punched him and that the
attack did not stop until others intervened. The Committee went on
to state that in the absence of any positive evidence other than
the statement of the colleague in question, the Committee could not
determine who initiated the incident or the exact nature of what
had taken place. The Committee considered it appropriate to issue
the claimant with a warning.
In applying for judicial review the claimant
argued that the Committee's decision was unlawful in that the
Committee had acted unreasonably in not requesting the GMC witness
to give oral evidence and to make them subject to
cross-examination; and that the conclusions of the Committee were
unreasonable and therefore unlawful.
In considering the application for judicial
review, the Court accepted the arguments advanced on behalf of the
GMC that, in considering whether there had been a fair hearing, one
had to take into account the sanctions available to the Committee,
and the degree of severity of those sanctions; that there is not an
invariable or constant standard of fairness. Rather, what is
required is dependent on context, and one of the relevant variables
is the seriousness of the consequences which may follow an adverse
finding. Whilst the Court dismissed the application for judicial
review on the grounds submitted by the Claimant, they allowed it on
a ground which arose during the course of the hearing itself, in
respect of a breach of the procedure required under Rule 34.
In accordance with Rule 34(9)(c) in relation
to proceedings before the Committee, not less than 28 days before a
hearing, each party is required to notify the other party, within
14 days of receipt of a list of documents to be relied on, whether
he/she requires any relevant person to attend and give oral
evidence. It was found that neither the letter sent by the
Assistant Registrar nor any of the other documents submitted on
behalf of the GMC complied with the requirements of that
provision.
The Court rejected the arguments made on
behalf of the GMC seeking to rely on the claimant's failure to
raise concerns about the absence of the witness at the time of the
IC hearing, and the fact that the claimant had had the opportunity
to cross-examine his colleague during the course of the Trust's
investigation.
Although the Committee would not have been
bound to direct the attendance of the witness in question, the
Court found that there had been a breach of the procedural
requirements in the Rules and that that breach prejudiced the
claimant and made him subject to an unfair hearing. The decision of
the Committee was quashed and the matter was remitted.
