QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ANDREW LINDSAY
|- and -
|SOLICITORS REGULATION AUTHORITY
Andrew Tabachnik QC (instructed by Russell-Cooke LLP) for the Respondent
Hearing date: 26 April 2018
Crown Copyright ©
Mrs Justice Lang :
i) refused to adjourn the hearing of the renewed application to stay the hearing, on 16 November 2017;
ii) refused his application to stay the proceedings, on grounds of ill-health, on 20 November 2017;
iii) proceeded with the hearing in the Appellant's absence, on 20 to 29 November 2017.
"35. There is no doubt but that the exercise of discretion by a tribunal, particularly in relation to a case management matter such as whether there should be an adjournment, is one with which the EAT should be slow to interfere, and then only on limited grounds. There is no dispute but that such grounds include perversity. It is also clear that where the consequences of the refusal of the adjournment are severe, such as when it will lead to the dismissal of the proceedings, the Tribunal must be particularly careful not to cause an injustice to the litigant seeking an adjournment: see my remarks in Teinaz v London Borough of Wandsworth (unreported) 16th July 2002 at paragraph 20. In that judgment I made some general observations on adjournments:
"21. A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.
22. If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved."
36. Similarly, Arden LJ said at paragraph 37:
37. 37. It is to be noted that the standard of review as respects the exercise of discretion involves the grant of considerable deference to the inferior tribunal. In particular, where several factors going either way have to be balanced by the inferior tribunal, the appellate tribunal does not interfere with the balancing exercise performed by the inferior tribunal unless its conclusion was clearly wrong."
38. She also said in paragraph 39:
"While any tribunal will naturally want to be satisfied as to the basis of any last minute application for an adjournment and will be anxious not to waste costs and scarce tribunal time or to cause inconvenience to the parties and their witnesses, it may be that in future cases like this a tribunal or advocates for either party could suggest the making of further enquiries and a very short adjournment for this purpose.""
"… Save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with a hearing when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process."
"…She clearly was unable to attend this hearing because she was too ill to do so. In those circumstances, I do not think there were any overriding public interest considerations which should have deprived her of her basic rights to be present when the case was put against her, and to be in a position where she could either of course examine herself, or have a representative with whom she could communicate cross examine on her behalf. It was a breach both of the principles of natural justice and Article 6."
"18 It goes without saying that fairness fully encompasses fairness to the affected medical practitioner (a feature of prime importance) but it also involves fairness to the GMC (described in this context as the prosecution in Hayward at [22(5)]). In that regard, it is important that the analogy between criminal prosecution and regulatory proceedings is not taken too far. Steps can be taken to enforce attendance by a defendant; he can be arrested and brought to court. No such remedy is available to a regulator.
19 There are other differences too. First, the GMC represent the public interest in relation to standards of healthcare. It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. The consequential cost and delay to other cases is real. Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed.
20 Second, there is a burden on medical practitioners, as there is with all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.
23 Thus, the first question which must be addressed in any case such as these is whether all reasonable efforts have been taken to serve the practitioner with notice. That must be considered against the background of the requirement on the part of the practitioner to provide an address for the purposes of registration along with the methods used by the practitioner to communicate with the GMC and the relevant tribunal during the investigative and interlocutory phases of the case. Assuming that the Panel is satisfied about notice, discretion whether or not to proceed must then be exercised having regard to all the circumstances of which the Panel is aware with fairness to the practitioner being a prime consideration but fairness to the GMC and the interests of the public also taken into account; the criteria for criminal cases must be considered in the context of the different circumstances and different responsibilities of both the GMC and the practitioner."
Summary of the proceedings
"He has recently had his echocardiogram which shows again, a significantly dilated and severely impaired left ventricle with an aneurysmal apical segment. Reassuringly his valves do not show any significant problem and his left atrium remains normal size.
Unfortunately Andrew had an ICD shock yesterday which seems to be appropriate secondary to VT. As per my previous correspondence, he has been reported to be under considerable stress recently and in my view of his severe underlying heart disease, I wonder whether or not this could have played a part in this significant arrhythmias...I have again advised him that he should, at all costs try to avoid significant stressful situations as we certainly saw an increase in arrhythmias a few years ago when he had stress at work and if he is getting ongoing stress this may precipitate further life threatening arrhythmias and would certainly be best avoided if possible."
"Given Mr Lindsay's significant cardiac history and severely impaired left ventricle and given the clearly documented occurrence of potentially life-threatening arrhythmias at times of stress, I think it reasonable to conclude that Mr Lindsay's recent deterioration may be the result of recent stress. In view of this it is my medical opinion that Mr Lindsay is not fit to be involved in his upcoming case, which I gather may involve significant and prolonged mental effort and stress as I would be concerned that this would precipitate further life-threatening arrhythmias."
"5.0 Opinion on fitness to proceed with the Tribunal
5.1 Mr Lindsay has serious heart disease which limits his activities and causes ongoing symptoms. I shall consider first the pump function of the heart, and then the rhythm. The EF is an index of the pumping capacity of the LV and in Mr Lindsay this is ~0.30-0.35 (normal =0.55). However he is able to maintain a good level of functional capacity for someone with this degree of LV dysfunction. There has been no clinical evidence of heart failure. The echo measurements and appearances have been stable for some time, and were last documented in January 2017. In my opinion it would not be expected that the Tribunal would cause a deterioration in LV pump function, which would permit Mr Lindsay to participate in the proceedings, to instruct representatives, to attend the hearing and be cross-examined.
5.2 Mr Lindsay is in paced rhythm at a normal rate for >90% of the time, and his beta-blocker therapy is able to suppress, to some degree, the increase in heart rate in response to physiological stimuli and in AF. This is a stable situation which would be expected to permit Mr Lindsay to engage in correspondence, instructing legal representatives and preparing statements etc. during the normal working day. There has been a single instance of life-threatening arrhythmia that was terminated by the ICD, which took place when he was in a condition of severe stress. It is well known that stress can exacerbate and cause cardiac arrhythmias, and it would seem reasonable to assume that on balance of probabilities, the high stress level played a part in the genesis of this arrhythmia. For this reason, and because most of his recent symptomatology is associated with stress, I suggest that it is necessary for the Tribunal to take into account the implications of the stress response in this case.
5.3 It is likely that Tribunal proceedings are normally associated with a degree of stress in any Respondent. It is my view that if his levels of stress were nearer "normal" Mr Lindsay's heart rhythm and rate would be well able to cope with participation in proceedings, instructing representatives and attendance at the hearing. However I would recommend that situations associated with severe, immediate and evoked stress such as can occur during adversarial cross-examination in court should if possible be avoided. But it is likely that if the levels of stress in court were to begin to approach the level at which his ICD was triggered, Mr Lindsay would already have withdrawn from the proceedings.
5.4 Currently Mr Lindsay's symptoms and capabilities appear to be dominated by a severe stress/anxiety reaction that has been triggered by the onset of the tribunal proceedings, and is likely at this stage to have become chronic. I am not an expert in stress disorders but it would appear to me that this reaction has affected his behaviour and concentration, and has caused him to look for and to react to irregularities of heart rhythm that he might otherwise live with or ignore. At the present time he feels unable to engage with the proceedings in any form on account of stress.
5.5 I suggest that it may be helpful to seek an opinion from a consultant psychologist or psychiatrist, who may be able to give worthwhile recommendations for stress management in this case. And it would be in Mr Linday's interests to accept and to cooperate with strategies that may potentially reduce the likelihood of further ICD shocks.
6.1 Mr Lindsay has severe heart disease and an implanted cardioverter-defibrillator. In my opinion form a purely cardiac point of view he would be safe to continue with the Tribunal proceedings, with the caveat above (paragraph 5.3) regarding severe stress and confrontational questioning. However Mr Lindsay appears to be suffering from a severe stress/anxiety condition which has in my opinion, on the balance of probabilities, contributed to the rhythm that activated his defibrillator, and currently prevents him from participation in the proceedings."
"66. …. The Tribunal considered that Professor Hart had made his recommendation regarding a psychologist/psychiatrist for a fairly broad purpose rather than for a therapeutic plan to address stress as the First Respondent suggested. The report was about the First Respondent managing his heart condition during the hearing. The Tribunal did not therefore consider that the First Respondent had provided a cogent reason for not cooperating with Dr Britto. He had originally indicated that he was willing to cooperate but he did not do so in spite of the Tribunal varying the timeline for the examination to accommodate his holiday plans. Professor Hart said that the First Respondent could go ahead with the proceedings if his stress levels were kept down.
67. The further report from a psychologist/psychiatrist which Professor Hart recommended had not been possible because the First Respondent had not cooperated. In the context of whether it would be unfair to require the First Respondent to undergo a substantive hearing the Tribunal considered that an experienced Tribunal should be able to manage the situation. It could ensure that the First Respondent was afforded regular breaks and the First Respondent could manage his own participation including as Professor Hart indicated, withdrawing if appropriate. The Tribunal did not overlook the fact that Dr Gall was the First Respondent's treating physician and took a rather different view from Professor Hart but the latter had made clear that he regarded himself as instructed as an independent expert and his actions in electing not to read the report of Dr Cripps bore out his independence….the Tribunal accepted the submissions of Mr Tabachnik in his skeleton argument contrasting the report of the First Respondent's treating cardiologist with that of Professor Hart who was independent of their relationship.
68. The Tribunal also noted the detailed submissions made over the last few days by the First Respondent in respect of his application. By contrast the First Respondent had elected not to comply with the Tribunal's directions and submit an Answer to the allegations in the Rule 5 Statement. The Tribunal noted that the First Respondent had been able to correspond and deal with his interlocutory application and correspondence arising out of it. Whatever help he had received, it was clear that he had been able to prepare for and follow the arguments relating to the application working late into the evening and engaging in discussions with the Second Respondent.
69. The First Respondent had raised objections to the continued involvement of both the Tribunal and the Applicant (and its representatives) in these disciplinary proceedings and asserted that he refused to cooperate with Dr Britto because his instruction arose out of the report of the Professor. His objections were based on alleged violation of his rights concerning private information because Professor Hart's report made reference to another medical condition which the First Respondent had suffered from earlier than the six-year period to which the medical records released to the Professor had related but which had been referred to in those records. The Tribunal could see nothing exceptional in what had occurred in that regard; and it had no relevance to the conduct of a fair and impartial hearing. The Respondent was himself an experienced clinical negligence solicitor and would have on many occasions had experience of providing documents to medical experts for comment. It was a matter for the expert in question to determine what aspects of the documentation provided should be referred to in their independent report. Russell-Cooke had written to Professor Hart and enquired why he had made reference to the other medical condition and the Professor had replied.
71. The Tribunal could find no grounds for staying the proceedings on the basis that the Respondent had not had the opportunity to prepare because of his medical condition as he clearly could prepare for Tribunal hearings when he chose to do so. Based on the medical reports which the Tribunal had been provided with, there was nothing to prevent the substantive hearing taking place as listed provided the division of the Tribunal hearing the application offered reasonable adjustments to the First Respondent and if he did exhibit symptoms which gave the sitting Tribunal serious concern it was a matter for that division of the Tribunal to deal with it at the time.
72. Having considered the multiple correspondence from the First Respondent and the points he had raised, the Tribunal considered that none was of significant relevance to the question of his ability to have a fair trial or good reason for the substantive hearing listed to commence on 20 November 2017 not to go ahead. The Tribunal was sensitive to his medical condition and could make reasonable adjustments. The Tribunal had afforded the First Respondent the opportunity for further medical evidence to be obtained but he had chosen not to cooperate and the Tribunal did not consider the absence of that evidence to be an obstacle to proceeding. The Tribunal therefore dismissed the First Respondent's application for a stay of the proceedings."
"11. The medical evidence of Dr Saleem did not specifically address the First Respondent's ability to participate in these proceedings, his ability to instruct legal representatives to act on his behalf, his ability to give evidence and be cross-examined, and if so subject to what reasonable adjustments. There was no evidence that if the proceedings were stayed to enable CBT/anxiety management treatment, that this would result in the First Respondent being in a better position to participate in the proceedings. Indeed, he would have the stress of the ongoing proceedings during any such period.
12. The Second Respondent had made a number of representations about the impact of these proceedings on her. If the substantive hearing was adjourned this would mean that the proceedings in respect of her were also adjourned, unless they were to be severed and another division of the Tribunal had previously decided against severance. The Tribunal had to balance the position of both Respondents in reaching its decision.
13. The First Respondent had not participated in these proceedings in any meaningful way. He had not seen Dr Britto, the psychiatrist nominated in accordance with the earlier direction of the Tribunal, despite extensive re-organisation of the arrangements for his appointment to see Dr Britto to accommodate the First Respondent's holidays. He had declined to comply with the earlier direction of the Tribunal, which was significantly directed towards obtaining guidance on making reasonable adjustments during the hearing to accommodate the First Respondent's stress. At the eleventh hour he had submitted the report of Dr Saleem which notably failed to address the question. Nonetheless the Tribunal could and would make reasonable adjustments during the period of the substantive hearing. There was no additional information in Dr Saleem's report that led the Tribunal to conclude that the proceedings should be stayed and the application was refused".
"24. The only new evidence before the Tribunal since it had made its decisions on 15 November 2017 was the further correspondence from the First Respondent and the letter of instruction to Dr Saleem. The First Respondent had referred to having been unwell for seven to ten days and the Tribunal would have thought he might have been able to produce some updating medical evidence but had not done so.
25. The Tribunal was not prepared to adjourn further consideration of the First Respondent's application for a stay. The First Respondent said that he was now willing to be assessed by an independent expert having declined to co-operate with that assessment since July 2017. The First Respondent had sent a number of cogent emails during the course of the proceedings. He had understood the reasons for the assessment and had declined to co-operate with it. There was no evidence that he would now co-operate with it other than his email of 20 November 2017. The application for a stay was refused.
26. The Tribunal proceeded to consider the application to proceed in the First Respondent's absence. He had put himself at a disadvantage by failing to file an Answer. There was a public interest in the hearing proceeding. The case against the First Respondent involved serious allegations including a number of allegations of dishonesty.
27. The Tribunal also had to consider the impact on the Second Respondent if the hearing was adjourned. The investigation had been ongoing for some years. The recollection of events in 2014 would not become any clearer with the further passage of time. Given the way in which the allegations were interlinked it would not be in the interests of justice for the cases to be severed and none of the parties had made this application to the Tribunal.
28. The Tribunal carefully considered Mr Tabachnik's submissions and the factors set out in the case law it had been referred to. The First Respondent had not substantively engaged with these proceedings, he was aware of them and aware of the hearing date, having confirmed that he was not going to be attending the hearing. In the circumstances the Tribunal concluded that the First Respondent had voluntarily absented himself and it would proceed in his absence. It was in the interests of fairness and justice for the substantive hearing to go ahead."
"The Tribunal had not received any fresh medical evidence in relation to the First Respondent's attendance at hospital. He had said that he would send the discharge notice but had not yet done so. Having reviewed all of the previous considerations, including the requirement to be fair to all the parties and recent correspondence the Tribunal rejected the application for an adjournment or stay that was implicit in the email dated 27 November 2017."