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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Adu v General Medical Council  EWHC 4080 (Admin) (16 October 2014)
Cite as:  EWHC 4080 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|DR KOFI ADU||Claimant|
|GENERAL MEDICAL COUNCIL||Defendant|
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Miss G White (instructed by General Medical Council) appeared on behalf of the Defendant
Crown Copyright ©
"The Tribunal's decision was against the weight of the evidence, the evidence was not strong enough, so the Tribunal's decision warrants a retrial."
(b) that he had been the victim of bias in the fitness to practise proceedings.
(c) that amendments made to the tests of competence results amounted to a material irregularity.
(d) that the legal assessor should have recused himself due to "actual or potential" bias.
(e) that an error over the status of a certificate should not have been accepted by the Tribunal and in doing so they had improperly withdrawn an important issue of fact and
(f) he complained that restrictions on his licence to practise made earlier had in fact caused "de-skilling" and had an adverse impact on his performance.
"As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel."
Again at paragraph 20 he said:
"These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
(a) not following clinical guidelines
(b) inadequate record keeping
(c) poor communication and
(d) not seeking advice from senior colleagues.
"The essence of the doctrine of apparent bias is that justice must be seen to be done. Both parties agree that the crucial question is whether the fair minded and informed observer, having considered the facts, would conclude there was a real possibility of bias..."
That proposition of course comes from the case of Porter v Magill  UKHL 67. He went at on paragraph 88 to discuss the more recent authorities and to add to the concept of a fair-minded and informed observer:
"That construct can be assumed to have access to all the facts that are capable of being known by members of the public generally..."
Again reliance was placed and authority taken from the case of Gilles v Secretary of State for Work and Pensions  UKHL 2 and Hellow v Home Secretary  UKHL 62. In that case Lord Hope had said that the fair-minded and informed observer was not to be confused with the person who has brought the complaint. She had a measure of detachment, assumptions that the complainant makes are not to be attributed to the fair-minded and informed observer unless they could be justified objectively. At paragraph 89 Cranston J discussed the case of R v Gough  AC 646. That was a case in which the advice was given to a bench of lay magistrates by a justices' clerk.
"In my view the principle is clear: the bias of advisers is capable of vitiating a decision when there is a real possibility that it has adversely infected the views of the decision-maker. That seems to me to turn on at least three considerations. First, there is the nature of the advice itself. Advice to my mind falls along a spectrum from the provision of information, which may or may not have a bearing on the ultimate decision, to a strong recommendation that a particular course be taken. Secondly, there is the matter to which the advice pertains. That may be tangential to the decision to be taken, or it may be an essential component without which no decision is possible. Thirdly, there is the relationship between the adviser and the decision-maker and whether it is so close that there is a real possibility that the bias of one will infect the other."
(a) read the report which was fair and accurate.
(b) appreciated that report included responses unfavourable to the candidate.
(c) seen that the candidate did in fact have the appropriate skills and experience and
(d) that the advice given was on procedural matters and not the substantive decision to be made.
Erasure from the Medical Record
"...depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community."
But there is a balance to be struck between Dr Adu's practice as a doctor and the need for the public to be protected. It seems to me that there is good reason to find, even on an exacting analysis of the factual case that the objective in removing him from the register of those unable to practice is sufficiently important to justify limitation on his ability to do so. There is a clear rational connection between that and the objective, namely of ensuring in so far as it is reasonably possible that all those who practice within the medical profession do so to a high standard of competence and skill. There is no less intrusive measure in my view that could be used. The severity of the consequences which I accept entirely to Dr Adu are nonetheless the striking of a fair balance between his rights and the interests of the community as a whole. Accordingly, the appeal fails and the sanction remains.