26 June 2023

Dr Cunliffe, the Medical Director of the Heart of England NHS Foundation Trust, had been accused together with fellow doctor Dr BA, of failing to protect patients from a risk of harm posed by Mr A, a Consultant Breast Surgeon at the Trust, in respect of concerns raised relating to Mr A’s performance and conduct.

The MPTS determined that all of the allegations raised against Dr Cunliffe and Dr BA were not proven. Given the initial GMC investigation into Mr A commenced in December 2013, this undoubtedly welcome result will have put to rest a great many years of uncertainty and anxiety for the doctors.

Following this determination, an application for costs was made under Rules 16A & 16B of the General Medical Council (Fitness to Practice) Rules 2004 (as amended).

Mark Sutton KC, acting as Counsel for the doctors, highlighted the immense stress and anxiety endured by Drs Cunliffe and BA, their colleagues and their families together with the impact this has had on their professional careers. Sutton was critical of the GMC’s investigation and the allegations levelled against the doctors as a result, calling this profoundly unsatisfactory. In contrast to the consecutive, ordered approach the GMC ought to take in their investigations, in this case Sutton submitted the GMC had instead formulated their allegations from unrelated inquiries and unsupported evidence. Witnesses called by the GMC were said to have been unable to provide relevant factual evidence to support the allegations and provided opinion evidence with the benefit of hindsight.

Sutton took this further, submitting that the GMC’s lack of scrutiny over the evidential grounding of their allegations was obvious during the hearing itself. Neither Dr Cunliffe nor Dr BA were questioned on significant aspects of their witness statements during cross-examination. The GMC’s own expert witness, Dr AL, conceded that a significant amount of allegations were unsustainable, and these allegations were subsequently withdrawn or dismissed following a Rule 17(2)(g) application.

It was also noted by Sutton that the GMC had failed to provide proper disclosure of documentation, failed to prepare the hearing bundle in line with case management directions, failed to provide hearing transcripts to expert witnesses, failed to serve a schedule of evidence and delayed proceedings unnecessarily by repeatedly interrupting and halting matters to take instructions. He argued that their conduct during the hearing was inconsistent with the standards of fairness and justice that should guide such matters. This conduct had caused the unnecessary incurring of expenses which were both avoidable and quantifiable.

In contrast, the GMC’s position was that there was no failure to comply with the 2004 Rules nor with any direction made by a Case Manager or Tribunal during the hearing itself.

The Tribunal considered that it was unfair to present and maintain a case where evidence was lacking and relied on unprepared witnesses. Expert reports had been obtained without establishing the evidence on which they relied. The Tribunal found that the GMC’s conduct in this matter was unreasonable.

In reference to the disclosure of documents, the Tribunal found this to be a “culpable failure” due to the previous repeated requests for disclosure. The GMC had a responsibility to investigate and assess and allow for proper consideration of its disclosure. The Tribunal again found the GMC’s conduct under this ground to be unreasonable.

Turning its consideration to the allegation that the GMC had failed to prepare the hearing bundle in line with case management directions, the Tribunal did not find unreasonable conduct. The doctors’ representation had delayed in complying with their own obligations with regards to the bundle and so despite deficiencies in the GMC’s compliance with the original direction, this was not a culpable failure and both parties had contributed to this issue.

In terms of providing hearing transcripts to the expert witnesses, the Tribunal did not find any failure to comply with the 2004 Rules or a direction in this regard. While there had been an identifiable failure to provide the transcripts, this was not contrary to a rule or direction.

Delays and adjournments during the hearing, together with the failure to serve a schedule of evidence, were stated to have been caused by the GMC requiring instructions and a lack of support from the instructing solicitor. The GMC was not considered to provide sufficient clarity to either the doctors or the Tribunal itself regarding the allegations against the doctors. Sutton claimed that this amounted to non-compliance with the Tribunal’s direction regarding case presentation and the Tribunal concluded that the GMC’s conduct amounted to a failure to comply with the 2004 Rules and therefore, unreasonable conduct.

The Tribunal has discretion when determining whether to make an expenses order in regulatory proceedings, but rarely will, following the “Booth” line of cases which recognised a potentially “chilling effect” on public bodies if expenses orders were made routinely against them in regulatory proceedings. Each application must be taken on its merits however, and in this case, an order was made against the GMC in favour of the doctors as the consequences of the GMC’s deficient conduct were far-reaching and significant.

Natalie McCartney, Senior Associate and Solicitor Advocate: nem@bto.co.uk / 0131 222 2939