The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was privileged.
Held: Immunity given in a criminal court did not provide an excuse before a professional body considering a complaint of misconduct. Immunity is a common law concept. It is given to witnesses to encourage them to give evidence, and to avoid multiplicity of actions.
The purpose of FTP (Fitness to Practice) proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The question of sanction for a professional conduct committee is not the same as that of a court imposing retributive punishment. The FTP thus looks forward not back. The powers exerciseable by the committee under the 1983 Act were not limited to situations where the judge had referred the case to them. In this case the decision of the High Court granting relief to the particular doctor was correct on the facts, but the GMC had the jurisdiction it claimed.
The court set out the proper approach for the administrative Court hearing an appeal under section 40. The test is whether the decision below was wrong. This is a more intrusive appellate function than that deployed in judicial review where the question is limited to whether the decision was reasonably open to the tribunal below. However, it is also plain that this re-hearing will normally take place on the basis of the documents only, where no fresh oral evidence is admitted or tendered. In those circumstances the court must be conscious of the considerable advantage enjoyed by the tribunal below of hearing the witnesses and forming an impression as to their credibility and reliability that is not open to the appeal court. Depending upon the context of the subject matter in dispute, the panel may also enjoy particular professional expertise in the assessment of clinical or related medical issues that will not be within the court,s experience.
Auld LJ expressed the approach to be taken on an appeal from a statutory tribunal, saying: ‘On an appeal from a determination by the GMC . . it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
ii) The Tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides;
iii) The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.’
Sir Anthony Clarke MR, Auld LJ, Thorpe LJ
Times 31-Oct-2006, [2006] EWCA Civ 1390, [2007] 2 WLR 286, (2006) 92 BMLR 51, [2007] 1 All ER 1, [2006] 3 FCR 447, [2007] LS Law Medical 1, [2007] Fam Law 214, [2007] ICR 701, [2007] QB 462, 92 BMLR 51, [2007] 1 FLR 1398, [2006] 44 EG 196
Bailii
Medical Act 1983 40
England and Wales
Citing:
Appeal from – Meadow v General Medical Council Admn 17-Feb-2006
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
Cited – Stanton and Another v Callaghan and Others CA 8-Jul-1998
The defendant, a structural engineer, was retained by the plaintiffs in a claim against insurers for the costs of remedying subsidence of the plaintiffs’ house. He advised total underpinning for pounds 77,000, but later while preparing a joint . .
Cited – Hussein v William Hill Group 2004
. .
Cited – Dawkins v Lord Rokeby 1873
dawkins_rokeby1873
Police officers (among others) are immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and . .
Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Watson v M’Ewan HL 1905
A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in . .
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Cited – Evans v London Medical College (University of London) 1981
A report was prepared by various analysts employed by the defendant Hospital following a post-mortem examination of a deceased child. It said that organs of the child contained various concentrations of morphine. The result was reported to the . .
Cited – Silcott v Commissioner of Police of the Metropolis CA 24-May-1996
The claimant had been convicted of the murder of PC Blakelock. The only substantial evidence was in the form of the notes of interview he said were fabricated by senior officers. His eventual appeal on this basis was not resisted. He now appealed . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – Marrinan v Vibart CA 1962
The court considered an action in the form an attempt to circumvent the immunity of a witness at civil law by alleging a conspiracy.
Held: The claim was rejected. The court considered the basis of the immunity from action given to witnesses. . .
Cited – Marrinan v Vibart CA 2-Jan-1962
Two police officers gave evidence in a criminal prosecution of others, that the plaintiff, a barrister, had behaved improperly by obstructing a police officer in the execution of his duty and subsequently gave similar evidence at an inquiry before . .
Cited – Munster v Lamb CA 1883
Judges and witness, including police officers are given immunity from suit in defamation in court proceedings.
Fry LJ said: ‘Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences . .
Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Mann v O’Neill 31-Jul-1997
High Court of Australia – Courts should be reluctant to extend the immunity given to witnesses: ‘the general rule is that the extension of absolute privilege is viewed with the most jealous suspicion, and resisted, unless its necessity is . .
Cited – Stanton and Another v Callaghan and Others CA 8-Jul-1998
The defendant, a structural engineer, was retained by the plaintiffs in a claim against insurers for the costs of remedying subsidence of the plaintiffs’ house. He advised total underpinning for pounds 77,000, but later while preparing a joint . .
Cited – Docker, Head, and others v Chief Constable of West Midlands Police CA 17-Mar-1998
Immunity from suit for abuse of process attaching to judicial process was attached also to steps taken as part of the investigation of a crime with a view to a possible prosecution of the matter. Auld LJ said: ‘The whole point of the public policy . .
Cited – Harmony Shipping Co SA v Saudi Europe Line Limited (‘The Good Helmsman’) CA 1979
One party objected to the use of the same expert handwriting witness by its opponent. The expert had already given his opinion to both sides, and the question was whether he could be compelled to appear at the trial.
Held: There is no property . .
Cited – Palmer v Durnford Ford QBD 1992
The plaintiff had consented to judgment for his opponent in a case against both the supplier and a repairer of a lorry tractor unit. They subsequently sued an engineering expert on the ground that his incompetent report had led them to advance . .
Cited – Ziderman v General Dental Council PC 1976
Lord Diplock said: ‘The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as . .
Cited – Gupta v The General Medical Council PC 18-Dec-2001
(The Health Committee of the GMC) A doctor had been found guilty of serious professional misconduct by the Professional Conduct Committee of the General Medical Council. She appealed on the basis that they had not given reasons for the factual basis . .
Cited – Regina (Dr Heath) v Home Office Policy and Advisory Board for Forensic Pathology Admn 4-Aug-2005
The applicant sought judicial review of the decision of the screening body of the Home Office policy and advisory board for forensic pathology to refer his case to the full panel.
Held: Judicial review was not appropriate as a remedy at this . .
Cited – Antonelli v Secretary of State for Trade and Industry CA 31-Jul-1997
The Secretary of State had the right to take account of a foreign criminal conviction against property, when assessing the fitness of a Estate Agent to act as such, even though the offence also took place before the Act came into effect. The statute . .
Cited by:
Cited – Mubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
Cited – Southall v The General Medical Council Admn 22-May-2009
The doctor appealed against the erasure of his name from the register of medical practitioners after a finding of serious professional misconduct. There had been earlier similar findings, but based on different allegations.
Held: The doctor’s . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – Harford v The Nursing and Midwifery Council Admn 10-Apr-2013
The appellant challenged a finding that her fitness to practice had been impaired by misconduct and the attachment of a conditions of practice order effective for six months.
Held: The Panel had applied the correct test. . .
Lists of cited by and citing cases may be incomplete.
Health Professions, Litigation Practice
Leading Case
Updated: 31 October 2021; Ref: scu.245604