ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Graham Wood Q.C. CO/218/2014
His Honour Judge Bird CO/2219/2014
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
LORD JUSTICE GROSS
SIR STANLEY BURNTON
(sitting as a Judge of the Court of Appeal)
| GENERAL MEDICAL COUNCIL
|- and -
|OLUFEMI ADEYINKA ADEOGBA
Simon Gurney (instructed under direct access rules) for Olufemi Adeyinka Adeogba
Evangelos-Efstathios Visvardis did not appear and was not represented
Hearing date : 24 February 2016
Crown Copyright ©
Sir Brian Leveson P :
The Law: Proceeding in Absence
"The main objective of the [GMC] in exercising their functions is to protect, promote and maintain the health and safety of the public."
"Thus I do not, for my part, approach the construction of the Rules on the basis that the various stages described therein should be regarded as prescribed for the protection of the person against whom the allegation is made. I approach the task of construction of the Rules rather on the footing that the Rules are intended to provide a framework for the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners."
"Where the practitioner is neither present nor represented at a [fitness to practise] hearing, the Committee or Panel may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules."
"(1) ... as soon as reasonably practicable after an allegation has been referred to a FTP Panel the Registrar shall serve a notice of hearing on the practitioner.
(2) The notice of hearing shall-
(a) particularise the allegation against the practitioner and the facts upon which it is based;
(b) specify the date, time and venue of the hearing;
(c) inform the practitioner of his right to attend the hearing and to be represented at the hearing in accordance with rule 33;
(d) inform the practitioner of the power of the FTP Panel to proceed in his absence under rule 31;
(e) inform the practitioner of his right to adduce evidence in accordance with rule 34 and to call and cross-examine witnesses; and
(f) inform the practitioner of the FTP Panel's powers of disposal under section 35D, section 38 and section 41A of the Act.
(3) The Registrar shall give no less than 28 days' notice of the date and location of the hearing and no less than 7 days' notice of the precise time and venue of the hearing.
(4) The Registrar may give a shorter period of notice than that specified in paragraph (3) where the practitioner consents or the Registrar considers it reasonable in the public interest in the exceptional circumstances of the case of the hearing."
"(1) Any notice of hearing required to be served upon the practitioner under these Rules shall be served in accordance with paragraph 8 of Schedule 4 to the  Act.
(2) Subject to paragraph (1), any notice or document required to be served upon the practitioner under these Rules may be served—
(a) by ordinary post; or
(b) by electronic mail to an electronic mail address that the practitioner has notified to the Registrar as an address for communications.
(3) If the practitioner is represented by—
(a) a solicitor, the notice or document may also be—
(i) sent or delivered to the solicitor's practising address, or
(ii) sent by electronic mail to an electronic mail address of the solicitor; or
(b) a trade union or defence organisation, the notice or document may also be—
(i) sent or delivered to the trade union or defence organisation's business address; or
(ii) sent by electronic mail to an electronic mail address of the trade union or defence organisation,
where the address has been notified to the Registrar as an address for communications.
(4) The service of any notice or document under these Rules may be proved by—
(a) a confirmation of posting issued by or on behalf of the Post Office, or other postal operator or delivery service;
(b) a confirmation of receipt of the notice or document sent by electronic mail; or
(c) a signed statement from any person serving the notice or document confirming that the notice or document was delivered to, sent to or left at—
(i) the practitioner's proper address,
(ii) the practising address or electronic mail address of the practitioner's solicitor, or
(iii) the business address or electronic mail address of the practitioner's trade union or defence organisation."
"(2) Any such notice may be so served—
(a) by delivering it to him;
(b) by leaving it at his proper address;
(c) by sending it by a registered post service; or
(d) by sending it by a postal service which provides for the delivery of the notice by post to be recorded.
(3) For the purposes of this paragraph and of section 7 of the Interpretation Act 1978 in its application to this paragraph, a person's proper address shall be—
(a) his address in the register; or
(b) if the conditions in sub-paragraph (4) below are satisfied, his last known address.
(4) The conditions are that—
(a) the person's last known address differs from his address in the register; and
(b) it appears to the Registrar that a letter sent to the person at his last known address is more likely to reach him."
"3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.
4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.
5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:
(i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;
(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;
(iii) the likely length of such an adjournment;
(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;
(v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;
(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;
(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;
(viii) the seriousness of the offence, which affects defendant, victim and public;
(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
(xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present."
"I do not think that "the seriousness of the offence, which affects defendant, victim and public"… is a matter which should be considered. The judge's overriding concern will be to ensure that the trial, if conducted in the absence of the defendant, will be as fair as circumstances permit and lead to a just outcome. These objects are equally important, whether the offence charged be serious or relatively minor."
"… in the absence of a notified fresh address the council was bound to send notice to the old registered address and could not be thwarted in its desire to take or continue these disciplinary proceedings by knowing that the only address they had was an address at which the document would not come to his attention."
The Law: Fresh Evidence
"In other words, the appeal court does not normally hear evidence afresh, but considers the appeal on the basis of the record of the evidence in the court below."
"[G]iven the structure of CPR 52.11, the difference between a "review" and a "re-hearing" is clearly thin and variable according to the circumstances and needs of each case, not least in the stipulation in CPR 52.11(2) of the norm for both processes of no oral evidence or evidence not before the lower court. The analysis of May LJ in E I Du Pont de Newmours & Co v ST Du Pont (Note)  1 WLR 2793,  EWCA Civ 1368, CA, paragraphs 92-98, is instructive on the overlap between the two, namely that a "re-hearing" in rule 52.11(1) may, at the lesser end of the range, merge with that of a "review", and that "at this margin, attributing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal"."
"[F]irst, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."
"We consider that under the new, as under the old, procedure special grounds must be shown to justify the introduction of fresh evidence on appeal. … That question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless remain powerful persuasive authority, for they illustrate the attempts of the courts to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. That task is one which accords with the overriding objective."
"These principles have been followed by the Court of Appeal for nearly half a century and are in no way in conflict with the overriding objective."
"The Ladd v Marshall principles were indeed at the heart of the exercise of discretion. Even if Silber J was too dismissive of the potential relevance of the evidence, he was entitled to say that the Appellant had provided no excuse for failing to obtain the evidence in time for the hearing and had shown no special reason why that failure should be overlooked."
"[G]iven the absence of an equivalent review mechanism in the case of medical practitioner, I regard Muscat as important in its recognition of the factor that it is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register, and that that is a factor which, in an appropriate case, can justify departure from what Smith LJ pithily described as 'the old Ladd v Marshall straightjacket'."
"The mere assertion that a party was unaware of the hearing date is unlikely to be sufficient to constitute a good reason. It is usually relevant to inquire whether the party was aware that proceedings had been issued and served. Once a party is aware that proceedings have been served, they have to be taken to expect to receive communications personally from the opposing party and/or the court. That includes notifications of hearing dates. If there is no system in place for ensuring that such communications are received, they are unlikely to be able to rely on the absence of such a system to say that there was a good reason for not attending the hearing."
Dr Olufemi Adeyinka Adeogba
"In relation to patient CT, who underwent a breast augmentation procedure in March 2008, it was alleged that the Appellant failed to provide sufficient information for informed consent, failed to give sufficient time before the operation, failed to take an adequate medical history, failed in respect of post-operative complications, and failed to take adequate photographs. It was also alleged that a burn had been caused during the procedure.
In relation to patient LD, who underwent a rhinoplasty procedure in May 2008 similar allegations were made in relation to photographs, informed consent and the appropriate time for reflection, and it was further alleged that the surgery was inappropriate given the presenting complaint under the clinical circumstances.
In relation to patient RP, who underwent both an original rhinoplasty in August 2008 and a revision rhinoplasty procedure in December 2008, in addition to a similar series of allegations in respect of the pre-operation steps, it was alleged that the operation had not been carried out to an adequate standard, and that there was no appropriate plan for reconstruction in respect of the revision rhinoplasty procedure.
In relation to patient TS, who had combined breast augmentation and uplift in February 2010 allegations were made in relation to the lack of information for informed consent, the inadequacy of the medical records, and the obtaining of a medical history.
In relation to patient MR, who had breast augmentation in April 2010, preoperatively it was alleged that inadequate information for informed consent had been provided, and the procedure itself was said to be inadequately performed. There were allegations post-operatively in relation to recording the concerns of the patient, and providing advice on the management of the implant malposition.
Finally in relation to patient SJ, who had a combined mastopexy and breast augmentation in August 2010 there were allegations made about the failure of provision of information for informed consent, and the obtaining of an adequate medical history."
"Where the practitioner is neither present nor represented at a hearing, the Committee or Panel may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules".
"The first thing is that you should proceed to do so with the utmost care and caution. You should consider whether adjourning the proceedings – which of course you can do of your own volition – would achieve the doctor's attendance. You would take into account balancing the public interest and the need to have matters such as this dealt with expeditiously against the doctor's own interests and the possibility, however remote or not that may be, of this Panel reaching a wrong conclusion due to the absence of the doctor".
"It is clear from the correspondence that Dr Adeogba was at one time engaging with the GMC but since February 2012 had ceased to do so. Since February 2013, documents sent to him have been returned as undeliverable and he has not engaged since then with the process of scheduling the hearing through the Case Management discussions. The Panel is satisfied that Dr Adeogba is aware that he had outstanding fitness to practice proceedings against him, by virtue of his previous engagement.
The dates of this hearing have been set for some time and in that regard Dr Adeogba has had sufficient opportunity to make arrangements to attend the hearing if he wished to do so. Dr Adeogba has stopped engaging with the GMC, has not provided it with an effective registered address and, therefore, there is no indication that any adjournment would result in Dr Adeogba attending. Having regard to all the correspondence, the Panel is satisfied that Dr Adeogba has voluntarily waived his right to attend the hearing and be represented.
In reaching its decision, the Panel has balanced the need for fairness to Dr Adeogba including his right to attend and/or be represented, with the public interest in proceeding with this case. The allegation before the Panel is serious and it has determined [sic] that it is in the public interest to hear the case without delay and it will take all necessary steps to ensure that the hearing is fair to all."
"12 The fitness to practise hearing then continued, with counsel for the GMC summarising his case in opening. He presented the documentary bundles to the panel and it was agreed that some time should be taken to read the voluminous medical records, the witness statements and the expert report. The panel adjourned until Wednesday when counsel began by reading extracts from the six witness statements into the hearing record. The chairman of the panel, Dr Phillips, informed counsel that they did not wish to hear from any of the witnesses, in effect accepting their evidence in its entirety, and counsel proceeded to call his expert, Mr Percival.
13 The expert's evidence took up the rest of that day. He was questioned about each of the patients on the basis of his report and expressed in a concluding view about each the extent to which he believed cumulatively that the treatment given fell below the standard he expected of a reasonably competent plastic surgeon. In two cases he expressed the view that the treatment fell seriously below, (CT and RP) which was a slight departure from his written opinion, where he had identified only one such case in this category. At the end of his evidence-in-chief, the panel was given an opportunity to ask questions which were largely of a clarifying nature.
14 The [Panel] then adjourned for the day, returning on Thursday when closing submissions of counsel for the GMC were made, and the advice of the legal assessor was given. It was now 12th December. Following the advice, the panel took time for consideration, and returned on Friday, 13th December to deliver its determination on the facts… In relation to the substantive allegations, all but four of these were found to have been proved.
15 The second stage of the fitness to practise hearing involved a determination as to impairment of fitness to practise and it was intended that this would proceed on the Monday morning (16th December). Unfortunately, the legal assessor, Mrs Ramage, was ill, and the matter was put off to the following day. On this occasion submissions were made by counsel for the GMC that the facts as found amounted to serious misconduct, and in the absence of any evidence to the contrary, which might have included remediation, insofar as the doctor had ceased to engage, his fitness to practise was currently impaired. Advice was given by the legal assessor, and after some deliberation the panel returned with the determination that the doctor's fitness to practise was indeed impaired. In the determination, after identifying what were described as "multiple failings", the panel noted that there was no evidence that the doctor had reflected on matters which had been referred to the panel or any knowledge and recognition of his failings which might have demonstrated insight. It was self-evident that the doctor had not engaged, and the panel had no alternative but to come to this conclusion.
16 The final stage involved sanction. There were further submissions made and advice given by the legal assessor, and on the following day (18th December) the panel returned with its decision in relation to sanction, whereby it had determined that [Dr Adeogba] should be erased from the medical register.
17 In the meantime, [Dr Adeogba] who on his own acknowledgement by counsel had adopted an ostrich like attitude, having declined to access the e-mails and correspondence whilst living in his village community in Nigeria, had decided at the end of the year to return to Germany. By good fortune he was able to log on to what remained of his e-mail account, and he discovered an e-mail from a former colleague at Birkdale in which the outcome of the GMC hearing had been mentioned. This caused him to delve through his other e-mails, and to discover the notification of the outcome. By now, [Dr Adeogba] was still within the 28 days in which he was able to appeal the decision of the panel, and he did so, initially seeking to utilise the e-mail communication which he had now opened relating to the earlier notice of hearing sent in November 2013."
"61 It seems to me that a very important consideration and one upon which the panel may have misinformed itself, is whether or not the Appellant was aware of the hearing. There is a difference between effective service, which is a rule compliance issue, and a practitioner actually acquiring knowledge of the proceedings. If a panel making a decision as to whether or not to proceed in the absence of the practitioner had every reason to be confident that the practitioner was aware, and was ignoring the proceedings out of lack of interest or apathy, this would undoubtedly be a very significant factor in the exercise of the discretion. The panel here referred to the hearing date having been set for some time, although it is plain that the GMC had only just complied with the service requirement (which was 28 days). There was no evidence, despite the Appellant's non-engagement with the case management process, that he was aware of the hearing, or that he had had sufficient opportunity to make arrangements to attend.
62 The evidence now available is credible (in the sense that it is not obviously wrong) that the Appellant, although adopting an ostrich like attitude to the outstanding regulatory proceedings, had nevertheless absented himself from any form of communication, and until he accessed his e-mails, he could not have been aware of the hearing date.
63 This, in my judgment, would undermine any conclusion that he had "voluntarily waived his right to attend" notwithstanding the fact that he had not engaged with any of the procedure following the IOP determination to suspend him. It was axiomatic that a doctor not resident in this country, but deriving his livelihood from practice here, would have no reason to remain; although a German residential address had been provided, there was no indication that he had returned to practice there, and as a Nigerian national it was not unreasonable to consider that he may have returned to his country of birth.
64 However, looking at the matter afresh, but mindful of the need to afford some deference to the decision of the first instance tribunal, I have come to the conclusion that if the panel had been aware of the material which has been considered by this court, it would not have exercised its discretion to proceed in the absence of the practitioner, or if it had, such a discretion would undoubtedly have been irrational. Thus I can determine that the decision was wrong.
65 The fact that the Appellant should have made himself aware of a likely fitness to practise hearing close to the expiry of his period of suspension is immaterial. It is not his conduct in disengaging which is being called into question as such, but whether or not an effective and fair hearing can now be achieved. The planned fitness to practise hearing had been scheduled for twenty days and yet no live evidence, save for that of the expert, had been lined up. This was the first hearing, therefore, and an adjournment was unlikely to be highly disruptive or inconvenient to attending witnesses. The risk of prejudice in proceeding in the absence of the practitioner, especially where, as here, the evidential input of the practitioner was likely to be important to the outcome in relation to the evidential findings of fact, was significant.
66 Further, when considering whether or not impairment of fitness to practise was currently impaired, and where a finding would be significantly influenced by any contemporary evidence from the practitioner, his absence was likely to be highly prejudicial in this regard.
67 Ultimately, however, in so far as the sanction of erasure effectively destroys the livelihood of a doctor for a period of five years (and often significantly longer because of the requirement to apply for restoration), this is a case where the doctor's interest significantly outweighed the public interest of expediency especially where the witnesses were not caused any inconvenience.
68 Although this court has a degree of sympathy for a panel dealing with a situation like this, and despite the fact that there is no requirement before proceeding to exercise the discretion other than ensuring rule compliance, it seems to me that even where non-engagement in the proceedings is a reasonable conclusion, in a case which is likely to have very significant consequences, and where the absence of a doctor means that only lip service is being paid to the adversarial process, nevertheless before ruling out an adjournment a panel should consider whether other steps have been taken which might ensure attendance, such as contacting the former practice or colleagues, or making enquiries of overseas registration authorities. Clearly if there is evidence that all this has taken place, and it is a second or third hearing, then a panel can proceed with more confidence that a determination in the absence of the practitioner is appropriate.
69 An important factor, undoubtedly, would be the length of notice which had been afforded to the practitioner. Where the notice is only just 28 days, as here, and there is an overseas registrant, it is not beyond the realms of possibility that the practitioner has returned to his country of origin."
Dr Evangelos-Efstathios Visvardis
"The Unit can only consider applications for assistance that come through referrers like the Citizens Advice Bureau, MPs and solicitors".
"you will have the opportunity to put your version of events to the Fitness to Practise Panel…"
"Dr Visvardis could reasonably be expected to have understood the distinction between Rule 28 (on cancellation) to which he himself had referred in an email of 24 March 2014, and Rule 29 (on postponement) to which the GMC had drawn his attention on 14 March 2014…
Although Dr Visvardis was under no obligation to chase a decision on cancellation… the GMC has had no further communication from [him] since his cancellation application was submitted…
Dr Visvardis has at no time indicated that he would wish to attend the hearing, or that he has been making attempts to arrange to be legally represented at this hearing. It is clear from the correspondences between the GMC and Dr Visvardis that he has been aware for some time of this hearing, and of the nature of the allegations made against him.
Given the apparent basis upon which Dr Visvardis made his application to cancel this hearing and the fact the Panel has no information before it to suggest a reason for his absence, the Panel concluded that neither a short adjournment, nor a longer one to a date in the future, would be likely to result in either the attendance of the doctor or a legal representative."
"[he] did not have a legal representative for the reasons clearly stated in his correspondence".
"Dr Visvardis refers to previous correspondences to the GMC but he does not say in his e-mail he is in the process of instructing any legal team".
"47. A reading of [the 19 August 2013 Rule 7 response and the 15 October 2013 referral] makes it plain that Dr Visvardis contested the factual basis of at least some of the allegations and indeed wanted to fight them. These… points [are] of crucial significance. Dr Visvardis concluded that his response to the allegations had not been taken seriously. He, at all times maintained the denials and assertions set out in his response, and his request for information about the way his response had been handled appear… to have been fuelled by his strong desire to have those points dealt with.
48. I can see no suggestion that Dr Visvardis at any time before the Panel's determination to proceed in his absence suggested that he would not attend the hearing… In his letter of 24 March 2014 (a full copy of which the Panel did see) Dr Visvardis made reference to his efforts to receive legal assistance from the pro bono unit of the Bar. He noted in effect that there was insufficient time to arrange representation. That is entirely consistent with a desire to be present…
49. In my judgment the Panel's reference to Dr Visvardis not stating an express desire to attend is a strong indicator that the Panel had misunderstood the task it was undertaking. The right to attend is a right which exists independently of an express assertion. In other words Dr Visvardis' right to attend was never dependent on him indicating that he wished to attend.
50. The Panel's weighing of the competing factors in the exercise of its discretion was in my judgment clearly flawed. Although the Panel was correctly directed to consider the "extent of disadvantages to the doctor if he is not able to present his account of events… you should consider the risk of the hearing reaching an improper conclusion [in] the absence of the doctor", there is no reference to this point on the determination at all.
51. In my judgment the Panel also had no basis on which to conclude that the doctor would not attend in the future if the matter adjourned. This is particularly the case because the Panel was aware at the time of its determination (following a concession made by the GMC) that the decision on cancellation may not have been received. I am not persuaded that the later correspondence of 4 April could be taken to support the Panel's conclusion; by the time that was sent the hearing was ongoing and Dr Visvardis was still complaining about the lack of information and even then he raised again the fact the he did not have legal representation.
52. In my judgment the Panel attributed far too much weight to the simple fact of the doctor's absence. It is clear from Jones that even a waiver of the right to attend is on its own not enough to justify the continuation of the hearing. It is entirely separate from the exercise of the discretion to continue […].
Lord Justice Gross :
Sir Stanley Burnton :