15 April 2021

In the case of Towughantse v GMC, the appellant was a consultant paediatric surgeon subject to a hearing before a Medical Practitioners Tribunal (“MPT”) after a General Medical Council (“GMC”) investigation into his fitness to practise. The MPT determined that the appellant’s acts and omissions contributed to the avoidable death of a new-born baby in 2013.

In November 2020, the MPT concluded that the factual findings amounted to misconduct and that the appellant’s fitness to practise was impaired due to that misconduct. The appellant was erased due to the risk of repetition, the lack of timely insight, and the failure to remediate.

Appeal

The appellant appealed against the decision of the MPT on several grounds, including the GMC’s reliance on an expert witness who the appellant claimed was not independent. Dr N (the expert) had worked at the hospital in which the patient was treated. He knew and had worked with key witnesses for the GMC. A further ground of appeal focussed on the failure of the Tribunal to give proper consideration to the time that had passed since the relevant events (7 years), the appellant’s insight and regret, together with his unblemished practice over those 7 years.

The Court noted that the language used in Dr N’s report was “colourful, rhetorical, intemperate and unrestrained”. The appellant relied on the strength of Dr N’s opinion as evidence that he was plainly guilty of actual bias and, if not, then apparent bias.

Mostyn J confirmed that, “an expert witness, or independent valuer, is not automatically disqualified from giving expert evidence by reason of some relationship with one of the parties or even an interest in the outcome of the proceedings”, suggesting that actual bias is confined to the position where an expert has a direct personal interest in the outcome of the proceedings which is other than de minimis. He considered the MPT decision to have found neither actual, nor apparent bias was “unimpeachable”.

Whilst the appeal failed on this particular ground (amongst others) Mostyn J remitted the matter, in part, for reconsideration of the issues of impairment and sanction to the MPT and to reconsider without reference to or taking into account the following:

i) The appellant’s decision to contest the allegations made against him at the inquest;
ii) The appellant’s failure thereafter to admit the narrative conclusions of the Coroner; and
iii) The appellant’s decision to contest the allegations made against him at the MPT, or the manner in which he contested them.

The court determined it was not procedurally fair for a registrant to face the risk of enhanced sanctions due to having robustly defended allegations made against him. Mostyn J confirmed that, “if a registrant defends an allegation of primary concrete fact by giving dishonest evidence and by deliberately seeking to mislead the MPT then that forensic conduct would certainly say something about impairment and fitness to practise in the future. But if, at the other end of the scale, the registrant does no more than put the GMC to proof then I cannot see how that stance could be held against him in the impairment and sanctions phases.”

In the absence of findings of blatant dishonesty, he concluded that the MPT should not have employed the appellant’s decisions to contest the allegations made against him in the Coroner’s court, or his failure to accept those findings in circumstances where they were soon replicated by charges brought against him by the GMC before the MPT.

Implications

Expert evidence

The decision makes clear that expert witnesses do not require to be independent, just unbiased. Mostyn J accepted that the pool of certain practitioners can be small, often leaving a limited list of potential experts to approach.

Whilst registrants may be concerned by this decision, it is important to remember that an expert’s duty is always to the court. The nature of the relationship between the instructed expert and registrant, institution or case players will require to be examined on a case by case basis. It is more important than ever then that registrants inform their legal team if they consider there to be a realistic prospect of an expert being biased.

The registrant’s defence

This case reminds us of the difficulties that Tribunals can face at the impairment stage and why legal advice to Tribunals is essential. This aspect of the judgment is helpful, reminding us that registrants can and should robustly defend allegations (where appropriate) without fear of incurring heavier sanctions.

For more information, please contact:

Sophie Lennox, Solicitor: sle@bto.co.uk / 0131 222 2939.

EMPLOYMENT LAW:

Caroline Carr, Partner & Accredited Specialist: cac@bto.co.uk / 0141 221 8012