[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Professional Standards Authority for Health and Social Care v General Medical Council & Anor [2025] EWHC 634 (Admin) (25 February 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/634.html Cite as: [2025] EWHC 634 (Admin)

[New search] [Printable PDF version] [Help]

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

		The Royal Courts of Justice Strand London WC2A 2LL
		25 February 2025

MR JUSTICE MACDONALD: This matter comes before the court for a relief hearing, following the court allowing an appeal by the Professional Standards Authority for Health and Social Care. The background to the appeal and its outcome are set out in full terms in the judgment of the court of 14 February 2025, which should be read with this short decision.

1. The court allowed the appeal of the appellant and directed that the matter be remitted to a differently-constituted tribunal for the hearing. The matter now comes before the court in circumstances where the parties have been unable to agree the terms of that remittal and the question of costs.
2. Regarding the issues that are currently between the parties, they are best articulated by reference to the draft order provided by the appellant, which includes the following draft directions:

"This matter is to be remitted for rehearing by a differently-constituted panel of the Medical Practitioners Tribunal (the first respondent) in accordance with the following directions:

a) the panel should be provided with a copy of the judgment of appeal;

(b) the panel shall redetermine the case applying the correct legal approach to cross admissibility as set out in the judgment of 14 February 2025; and

(c) the evidence to be relied on by the new panel should be

(i) the document evidence before the panel; and

(ii) a transcript of the hearing before the Medical Practitioners Tribunal".

3. It is that last direction that forms the basis of the primary disagreement between the parties, the effect of which is that the differently constituted panel would determine the matter on the papers, and not hear oral evidence. The appellant thus contends that the decision should be remitted to a differently-constituted panel of the MPT for determinations against the registrant on the papers.
4. The arguments in support of that are set out in a comprehensive and erudite Skeleton Argument from Miss Morris KC, who, again, appears before the court on behalf of the appellant. Those arguments can be summarised as follows:

a. the documentary evidence before the panel is comprehensive;

b. a full transcript of proceedings is available to the differently-constituted panel; and importantly,

c. the cross-examination of the two witnesses in this case has already been undertaken. It has been recorded and is available to the panel undertaking the rehearing.

5. The appellant further makes the point that the two witnesses who made complaints against the registrant are acknowledged by this court in its judgment to be vulnerable.
6. In these circumstances, notwithstanding the availability of special measures at any rehearing, Ms Morris submits that the impact on the complainants of having to give evidence for a further hearing would be extremely burdensome in the circumstances where cross-examination is burdensome, this court being entitled to take notice of that fact. The appellate further contends that the impact on the complainants would exacerbated in the event that this court were to direct a full rehearing given the delay that will attend such a direction. Within this context, the authority contends that there is, as it puts it, a real risk that one or both of the complainants would decline to participate in a remitted hearing.
7. It is right to point out that none of these assertions are supported by evidence, beyond that which is contained in the bundle and which the court has addressed in its previous judgment.
8. The appellant also argues that there will be limited utility in the reconstituted tribunal hearing oral evidence and cross-examination of the complainants. Miss Morris points out, as accepted by Mr Rawlinson, that there is no right to cross-examine a witness in this context and reiterates the point that cross-examination has already taken place. Miss Morris further submits that the appeal succeeded before this court because the tribunal erred in law and that putting right the errors made by the previous tribunal does not require, of and in itself, a rehearing of that evidence.
9. Miss Morris further submits that the relevant fairness considerations, as far as the registrant are concerned, can be provided for at a rehearing on the papers by permitting the registrant's representatives to make relevant written submissions on the application of the test as to cross admissibility, as articulated by this court, having regard to the transcript of the evidence of the witnesses that is available as a result of the cross-examination having already taken place.
10. Finally, Miss Morris raises the concern that a rehearing in full would allow the registrant, effectively, a second bite of the cherry, in that the registrant has had the benefit now of hearing the first panel's judgment, the comments of this court and indeed the evidence of the complainants. In those circumstances, Miss Morris submits that rehearing on further orders would risk unfairness and would benefit the second respondent.
11. The registrant, through Mr Rawlinson, opposes the matter being remitted for a rehearing on the papers and resists a direction being made to that effect. Mr Rawlinson submits that the matter should be remitted for what is termed a "full rehearing", by which it is meant that this court would direct a rehearing which involved oral evidence from the witnesses. Again, Mr Rawlinson relies on a comprehensive skeleton argument, which set out in detail the submissions upon which he relies in support of the course for which he contends.
12. Mr Rawlinson makes the initial point that the misdirection that this court identified in its judgment in February was not one that occurred as a result of the fault of the registrant.
13. Mr Rawlinson further submits that, given the registrant faces exceptionally serious allegations and that his registration is at risk, he should not be prejudiced in any way in the conduct of his defence and that the mere inconvenience of a witness is not sufficient to displace the principles of fairness and natural justice to which he is entitled.
14. Within that context, much of Mr Rawlinson's written submissions and his oral submissions before this court this morning, have concentrated on the importance of cross-examination and the need for the evidence against the registrant to be properly tested in that context.
15. Mr Rawlinson also makes the point that, given this court's findings and comments regarding the principle of cross-admissibility, it is entirely conceivable that further submissions will be made on behalf of the registrant, and further questions asked of both witnesses on the issues illuminated by the appeal. For example, in terms of their alleged vulnerability and in terms of the similarities as between the alleged behaviour.
16. As to the impact on the witnesses having to give evidence in respect of traumatic matters again, Mr Rawlinson argues that the submissions of the appellant regarding the potential impact on the witnesses of an oral rehearing are unevidenced and speculative.
17. Finally, Mr Rawlinson submits that there is simply no authority or precedent for the course suggested by the appellant, i.e. remitting a matter for the rehearing of serious allegations of a sexual nature with a direction that the tribunal not hear oral evidence. The appellant has not been able to identify any such authority.
18. The first respondent to the appeal, the General Medical Council, has communicated a position of neutrality to the court on the issues that are before it.
19. With respect to the law, the High Court has power to substitute its own decision for that of the disciplinary panel or committee or to remit the case under section 29(8)(d) of the National Health Service Reform and Healthcare Professions Act 2002, with directions as to how that hearing is to proceed.
20. Two cases were cited by the parties with respect to how this court should approach the exercise of its discretion. Neither is entirely on point.
21. The appellant relies on Hawkins v HCPC [2023] EWHC 3256 (Admin), which was a case which concerned whether or not to remit a matter per se and not specifically the question of whether remittal should or should not be on the basis of a paper exercise alone.
22. The registrant relies on Bonhoeffer [2011] EWHC 1585 (Admin). Again, however, the case is not entirely on point. It concerned the admission of hearsay evidence rather than whether it was appropriate to proceed to a rehearing on the papers only.
23. As I have noted, the appellant was not able to provide the court with any authority to date for the proposition that it was appropriate for the appellate court to direct, under section 29(8)(d) of the 2002 Act, that a rehearing of a finding-of-facts stage in a case involving allegations of sexually-motivated behaviour should take place only on the reconsideration of the papers. No party was able to refer the court to any case in which such course of action has been taken in other matters.
24. Having considered carefully the submissions, with regard to the terms of the remittal I am satisfied that the matter should be remitted for rehearing to a differently-constituted tribunal. I am equally satisfied that it is a matter for that tribunal to decide, subject to two matters, how the rehearing is to proceed.
25. Both parties seek of this court to dictate to a differently-constituted tribunal how the rehearing of the allegations of the registrant will proceed, by determining at this stage what evidence will be admitted before the differently-constituted tribunal and whether the differently-constituted tribunal will hear oral evidence or not.
26. Whilst the court has heard detailed arguments regarding matters of high principle with respect to the balance to be struck between the purpose of the regulatory regime and the interests of justice, including the importance of fairness and natural justice in the process adopted with respect to permitting oral evidence with cross-examination, in my judgment, that is not to the point. This court acts in an appellate capacity. Its task is to decide whether the tribunal erred. Once it has completed that task, and if it decides that the tribunal has indeed gone wrong, it may substitute its own decision for that of the panel or remit the case under section 29(8)(d) of the 2002 Act.
27. It is the case that section 29(8)(d) gives the court the power to remit the case to the panel to dispose of the case in accordance with the directions of this court. In this court's experience, however, it would be very unusual for an appellate court remitting a matter for rehearing to dictate to the first instance court undertaking that re-hearing matters of admissibility, evidence and procedure save in so far as they arise from the appellate court's decision.
28. In this case, it is appropriate that this court direct the tribunal decide the matter applying the correct legal approach to cross admissibility as set out in the judgment of 14 February 2025 as that is the error this court identified. However, given the respective roles of the appellant court and the tribunal to which the matter is to be remitted, I am satisfied that beyond directing that the differently-considered panel shall be provided with a copy of the judgment on appeal and directing that the panel shall redetermine the case applying the correct legal approach to cross admissibility as set out in the judgment of this court, the other competing directions contended for by the parties are far more appropriately dealt with by the new tribunal.
29. In particular, the differently constituted tribunal that is tasked with rehearing the matter will be far more appropriately placed to determine applications to admit evidence and to decide on whether oral evidence with cross-examination is required, The latter issue illustrates why.
30. Beyond the general assertion regarding the undesirability of vulnerable witnesses having to give evidence again, there is no evidence before this court to support the appellant's key contention that there is a risk that the two witnesses in question would not participate in a rehearing or that they would be adversely affected by having to give evidence again beyond the ordinary upset associated with that course of action. Further, there is no evidence that the two witnesses are in any way reluctant or unwilling to attend the tribunal to give evidence again. Against this position, weight must be attached the procedural safeguards to which the registrant is entitled, both at common law and under Art 6 of the ECHR.
31. It would not be right for this court, at a relief hearing, simply to assume an exceptional degree of prejudice the witnesses over and above the ordinary burden of having to give evidence again, to assume some degree of non-attendance or non-cooperation by one or both witnesses and then set those assumptions against the importance of ensuring fairness and natural justice in order to arrive at an answer as to whether the tribunal should be required to hear oral evidence or not at the re-hearing.
32. By contrast, the differently-constituted tribunal can be properly appraised on the position of the witnesses and can take an informed decision as the tribunal charged with making the substantive determination of fact as to whether further oral evidence and cross-examination is required and possible.
33. I am satisfied that it would likewise not be appropriate for this court to take decisions as to wider issues of admissibility in place of the differently-constituted tribunal hearing the matter. Matters of admissibility are generally for the tribunal dealing with the rehearing, rather than for the appellate court that directs the re-hearing, save where the question of admissibility is the subject of the appeal.
34. In the circumstances, I shall remit the matter for rehearing to a differently-constituted panel and I will direct that the panel be provided with a copy of the judgment on appeal. I will further direct that the panel shall determine the case applying correct legal approach to cross-admissibility as set out in the February judgment. Finally, I shall direct the questions of the admissibility of evidence and case management, including the need for oral evidence with cross-examination at the rehearing, shall be matters to be determined by the tribunal in accordance with the relevant rules.
_________