R (Clinton) v GMC [2017] EWHC 3304 (Admin)

The Claimant sought judicial review of a refusal by the Medical Practitioners Tribunal Service (the tribunal), to stay fitness to practise proceedings after it was discovered that complainants giving evidence against him had been provided with the case examiner’s decision and other supporting material prior to giving evidence.

The material disclosed to each of the complainants included a summary of the allegations made by the others, the fact that the Claimant had been acquitted of sexually motivated behaviour in 2014, that he had been the subject of a suspected breach of interim practice decisions, the conclusions of an expert witness that the Claimant’s conduct had seriously fallen below the standard expected, and an analysis of the evidence from the case examiner, including the strengths and weaknesses of the evidence.

The Claimant applied for a stay on the basis of an abuse of process; that the integrity of proceedings was so damaged that it should have offended the tribunal’s sense of justice and propriety to try the case, and submitted that the fairness of the proceedings was irredeemably compromised by the disclosure of this material which would result in the cross-contamination of evidence.

The tribunal refused the application to stay.

The High Court upheld the refusal and the application for judicial review was dismissed; the judgement of the High Court was that the tribunal’s analysis could not be said to be unreasonable or perverse and the decision was one that was it was entitled to reach.

Commentary and analysis

At first glance, and even perhaps after careful analysis, it seems strange that the High Court upheld the refusal of the tribunal to stay proceedings; such obvious breaches of policy and improper prosecutorial conduct must surely have compromised the fairness of the proceedings and caused prejudice to the Claimant.  Indeed, the tribunal had considered that the rules governing the disclosure of information to complainants were seriously defective, they contained glaring omissions in that they did not specifically address the risk of cross-contamination of evidence and the tribunal further concluded that the GMC’s conduct in this case was serious enough to compromise the integrity of the regulatory system.

However it seems that what was key for the High Court in upholding the tribunal’s refusal to stay proceedings was that it appeared that the disclosure had not prejudiced the Claimant as it had not had a negative impact on the evidence; the witnesses had given evidence in a way that was consistent with their original statements and they were not giving evidence about the same incident rather there were separate accusations made by three separate witnesses.

The fact that the risk of cross-contamination of evidence and therefore prejudice to the Claimant had not in fact materialised into actual cross-contamination and prejudice appears to be at the root of the reasoning of the decision not to stay proceedings – and this too was emphasised by the High Court.

At a basic level the judgment provides a useful and comprehensive review of the authorities on abuse of process and also the correct approach of the court in its role  of  judicially reviewing the tribunal’s decision; that it was not for the High Court to simply decide what was right and effectively substitute their view for that of the tribunal, rather the proper approach was to consider whether the tribunal’s decision was perverse or one that any reasonable tribunal, properly directing itself, could have reached.

Having clarified those two points on how they were approaching the review, the High Court disagreed with the Claimant’s submission that the tribunal should have given more weight to the misconduct and serious defects identified in the GDC’s policies and procedure and less weight to the lack of prejudice, or no weight at all.

The High Court held that the evaluation of those matters and the weight to be attached to them was a matter for the tribunal and unless it could be the said that the tribunal’s evaluation was one that no reasonable tribunal should have reached, the High Court should be very slow to intervene. The tribunal had “carefully evaluated each item that was disclosed to the complainants but which should not have been. In respect of each such item the tribunal came to the conclusion that the evidence was not affected by the disclosure. This was not a case where the disclosures took place at an early stage such that were it not for the disclosures there would not have been a prosecution. Furthermore, the tribunal noted that the evidence of the complainants had already been set down in writing long before the disclosures were made. In the circumstances, it was highly pertinent to note that none of the witnesses sought to change their evidence in any material respect after seeing the disclosed material. The conclusion of the tribunal that the evidence had not been altered and that the Claimant was not therefore prejudiced by the disclosure is one that this tribunal was entitled to reach”.

The Court held that the tribunal, had correctly directed itself as to the test for an abuse of process and the balancing exercise to be undertaken, identified several factors which it weighed in the balancing which included, apart from the absence of prejudice, the absence of bad faith and malice on the part of the GMC, the fact that the charges were made by three individuals in respect of separate matters and that they could be described as serious.

Consequently, the Court held that the tribunal’s analysis could not be said to be unreasonable or perverse and the application for judicial review was dismissed.

Perhaps typical reluctance on the High Court’s part to intervene with the decision of the tribunal considering the matter in the first place, and a surprising decision by the Tribunal in the first instance considering the seriousness of the risk of contamination and prejudice; however careful reasoning and analysis by the tribunal of the effect of the improper disclosures, rather than just the fact of them having occurred, provided a well-reasoned decision which it was perhaps difficult to get around in proceedings for judicial review.