Adjournment applications and proceeding in a registrant’s absence


By McDowell Purcell \ In All Posts, Public & Regulatory

The UK High Court has recently found that a registrant did not receive a fair hearing at a Fitness to Practise Inquiry in circumstances where his adjournment applications were refused and the Inquiry proceeded in his absence (Hayat v GMC [2017] EWCA Civ 1899 (Admin)).

Background

A complaint was made to the General Medical Council (GMC) in relation to Dr Hayat after he was found by his insurer to have made a false insurance claim.  A hearing before the Medical Practitioners Tribunal Service (MPTS) was scheduled to commence on 31 October 2016 for a period of 15 days.

Dr Hayat made two unsuccessful adjournment applications in the days preceding the Inquiry on the basis that: (i) he did not have sufficient time to prepare and (ii) he did not have sufficient funds to pay his lawyers and was awaiting the outcome of a loan application.

On Day 1 of the hearing, Dr Hayat’s counsel applied to adjourn the hearing on the basis of a letter from an Accident and Emergency doctor stating that Dr Hayat was suffering from back pain. The GMC opposed this application and the MPTS refused to adjourn the Inquiry on the basis that the letter contained no details as to the potential impact of the Dr Hayat’s pain.

The MPTS adjourned for lunch and Dr Hayat was found unresponsive and was brought to hospital by paramedics. The Inquiry was adjourned.

Dr Hayat was discharged from hospital on 4 November 2016 and on the same day, the GMC applied for the proceedings to continue in his absence on the basis of letters from his treating practitioners and a letter from Dr Hayat to his insurer wherein he admitted feigning chest pains during family law proceedings. This application was refused.

The GMC made a further application on 7 November 2016 to resume the Inquiry, at which point a GP certificate was submitted on behalf of Dr Hayat saying he was unfit for work. The MPTS agreed at that point that the hearing should resume in Dr Hayat’s absence.

The MPTS found that Dr Hayat’s fitness to practise was impaired and imposed the sanction of erasure from the register.

Appeal to the High Court

Dr Hayat appealed the decision on a number of grounds, one of which was that it was procedurally unfair to proceed with the hearing in his absence, after refusing his applications for an adjournment.

The High Court allowed Dr Hayat’s appeal and found that the MPTS should not have relied on medical evidence from 4 November 2016 when they considered the GMC’s application on 7 November 2016 to resume the Inquiry. Dr Hayat’s case was that, following his discharge on 4 November 2016, the after-effects of his treatment became severe and his GP declared him unfit for work on 7 November 2016.

The court held that the MPTS was not entitled to disregard the GP’s certificate merely because it did not also say that he was unfit to attend the hearing. The judge remarked that the hearing would have involved Dr Hayat representing himself, making submissions and cross-examining witnesses, while away from his home. The judge held that the MPTS did not give any proper consideration to these matters and Dr Hayat was deprived of the opportunity to give evidence and challenge the GMC’s witnesses.

He held that Dr Hayat did not receive a fair hearing and directed that a re-hearing before a fresh panel take place.

Conclusion

While this UK decision is not binding on Irish courts, it is likely to have persuasive authority in considering applications for adjournment and / or proceeding in a registrant’s absence. The judgment can be found here.

Author: Deirdre Duffy