On 16 July 2019 the Court of Appeal (Richards LJ, Simler LJ, Theis J) handed down judgment in the case of Sanusi v General Medical Council  EWCA Civ 1172.
Dr Sanusi had been accused of misconduct, encompassing clinical concerns and dishonesty. He co-operated with the GMC investigation and provided a witness statement and various documents, however he did not attend the hearing, stating that he was unable to secure days off from his GP training.
Applying the principles in R v Jones  1 AC 1 the MPT determined that it should proceed in his absence. That assessment was not challenged on appeal. Instead the doctor argued that after the finding of impairment, the MPT should have “paused briefly” to contact him to ascertain whether he wanted to participate in the final stage of the hearing. He also argued that his statement had referred back to documents submitted earlier in the process, which should have been before the MPT but which were not. Despite finding that the latter error represented a procedural irregularity, it made no difference to the outcome. Kerr J dismissed the appeal and Dr Sanusi pursued a second appeal.
Simler LJ, giving the leading judgment, and applying the principles in Adeogba v GMC  EWCA Civ 162,  1 WLR 3867 held that the factors running contrary to an adjournment applied with equal, if not greater, force to adjournments part way through a hearing, including, if it is reached, immediately before consideration of sanction. Accordingly the Court of Appeal held that there is no general obligation on the MPT to adjourn or to provide a registrant with the opportunity to make submissions in mitigation of sanction once adverse findings have been made against him or her.
As to the procedural irregularity, the Court of Appeal held that both the GMC and a MPT dealing with a case of serious misconduct should take reasonable steps to ensure that all relevant mitigation material provided by an absent registrant is available for consideration by the panel when it comes to deal with sanction. That obligation – the court found – is not however unlimited. It does not require extensive trawls through the archives, nor extend to sifting through large quantities of unindexed or uncategorised documentation provided by a registrant to determine what if any relevance it may have. The obligation extends only to reasonable searches for material that is objectively viewed as relevant.
The appeal was dismissed.
Jenni Richards QC and Alexis Hearnden appear on behalf of the General Medical Council.
To read full judgment, please click here.