Absence from disciplinary hearings and appeals

The recent case of General Medical Council v Armstrong [2021] 5 WLUK 384 revisited the issue of whether tribunals (including Appellate Courts such as the High Court) ought to proceed in the absence of the registrant respondent.

The respondent in Armstrong, in keeping with many registrants and professionals, deliberately chose to absent herself from the hearing of an appeal by the General Medical Council (GMC) against a finding by the Medical Practitioners Tribunal Service (MPTS) that her misconduct had not impaired her fitness to practice. Dr Armstrong had moved to Australia and two previous hearings had been aborted through no fault of her own. She had communicated to the High Court and to the GMC that she did not intend to attend the hearing or to be represented. The High Court decided to proceed with the appeal in absence of the Respondent applying the principles that had been set down in General Medical Council v Adeogba [2016] EWCA Civ 162.

What are the principles?

Whilst this case dealt with an appeal by the GMC, the principles are equally applicable in disciplinary hearings for all professionals.

1. The Court stated that a useful starting point in whether proceedings should proceed in absence of the respondent is to look at those principles applied in criminal proceedings (whilst recognising that the circumstances in relation to both sets of proceedings are markedly different).
2. The Tribunal or Court had to be guided firstly by the statutory objectives of the GMC which are to protect the public. The question of whether an Interim Orders Committee has imposed conditions on the practice of the registrant will be an important factor here as will the length of the proceedings and their history.
3. There is a burden on the registrant professional to ensure that he/she gives an updated address to the regulator. Thus, a professional aware of the prospect of a disciplinary process has a positive obligation to make proper enquiry about process and hearing dates with the regulator. If an updated address has not been provided to the regulator then the registrant is unlikely to be able to successful claim that he/she had no notice of a hearing.
4. Fairness to the practitioner is the paramount concern and is to be weighed against fairness to the GMC and requirement for due expedition etc.
5. Illness and unforeseen circumstances are very important factors and may be revisited afresh in any appeal.

Thus, the Court or Tribunal considering whether to proceed in the absence of the Registrant professional must weigh all above factors prior to making a decision.

Should I absent myself from my disciplinary hearing?

If a professional is no longer practicing or has experienced mental health or financial difficulties, the temptation to avoid attendance at a disciplinary hearing can be great, sometimes overwhelming. The difficulty is that it can often lead to substantial prejudice in the overall outcome of the case including the prospect of adverse financial consequences. It is always advisable to seek advice and to ensure that you or your legal representatives communicate with the regulator and the court or tribunal prior to every hearing. There may be a legitimate basis to seek an adjournment or for the outcome of the hearing to be agreed between the parties.

If you require expert advice or disciplinary hearing representation, please contact Brett Wilson LLP's specialist team of disciplinary solicitors on 020 7183 8950 or at law@brettwilson.co.uk