Sanusi v General Medical Council [2018] EWHC 1388

Dr Abayomi Sanusi v The General Medical Council [2018] EWHC 1388 (Admin) was a decision of Mr Justice Kerr sitting in the Administrative Court at Leeds in which he dismissed Dr Sanusi’s appeal against his erasure from the medical register, notwithstanding that the tribunal had not been provided with all relevant mitigation documents in the GMC’s possession.

Dr Sanusi had been found guilty by a Medical Practitioners Tribunal Service tribunal on 18 October 2017 of a series of misconduct charges and the tribunal ordered that his name be erased from the medical register. Dr Sanusi did not attend the hearing before the tribunal, although he was aware of it and provided written submissions.

The charges arose from Dr Sanusi’s clinical practice at Friarage Hospital, Northallerton, where he had worked from 2010. In October 2012 concerns arose about his assessment and management of Patient A and his record keeping. In February 2014 further concerns arose regarding Patient C, whom Dr Sanusi was said not to have assessed when requested by colleagues and with whom he had not communicated appropriately. In December 2014 yet further concerns arose regarding his management of Patient F. These matters led to disciplinary proceedings by his employer. He received a final written warning in respect of Patient C and was subsequently dismissed with notice on 3 July 2015, his contract to end on 20 December 2015. On 8 July 2015 his employer referred his conduct to the GMC.

While under notice of dismissal Dr Sanusi applied for a post with Rotherham NHS Foundation Trust. He was interviewed on 30 July 2015. It was later alleged that he had prepared his application form in a misleading and dishonest way and had compounded that dishonesty during the interview by failing to disclose that he had been dismissed as a result of clinical care concerns. When Rotherham NHS Foundation Trust discovered this it withdrew the post. Dr Sanusi was then appointed as a registrar at Doncaster and Bassetlaw Hospitals NHS Foundation Trust from 1 October 2015, where he worked as a specialty doctor in breast surgery for about a year. Two of his supervisors, Mr Olubowale and Mr Kolar, wrote clinical supervisor report letters in October and November 2016 in positive terms.

In May 2016 Dr Sanusi applied for and later secured a general practitioner trainee position. He left Doncaster and Bassetlaw on 3 October 2016 and took up his GP trainee post in February 2017, though at some point in 2017 he was suspended as a result of the disciplinary process. On 1 August 2017 Dr Alison Roberts, his clinical supervising doctor for the past six months, wrote a testimonial letter which was mainly favourable, describing him as very reliable and punctual and stating that he had keenly addressed areas of clinical concern with learning and updates.

In a letter of 31 August 2017 Dr Sanusi was given notice that the hearing would take place from 2 October 2017 with an estimated length of twenty days. He was informed of his right to be represented, to produce witnesses and documents or to make representations in writing, and of available sanctions up to and including erasure. He was told that the hearing could proceed in his absence and was referred to a link to the Sanctions Guidance. On 1 September 2017 the GMC’s legal adviser wrote enclosing draft witness statements, inviting him to submit any documents he wished to be included in the bundle and asking for a list of such documents and of any witnesses he intended to call. The letter enclosed a draft index of documents which the GMC proposed to include. That index referred to Dr Sanusi’s rule 7 submissions and enclosures, which turned out to be the two letters sent in October and November 2016 by Mr Olubowale and Mr Kolar.

Dr Sanusi did not respond directly to the specific request to provide a list of documents he wished to put before the tribunal. He did, however, send piecemeal to a caseworker at the GMC a substantial number of documents over a considerable period. The tribunal did not see these documents. They consisted of appraisal documents going back to 2014, a self-assessment and peer review dating from October 2015, an appraisal as at February 2016, certificates of courses completed, expressions of appreciation from former patients, results of clinical evaluation exercises, results of a patient feedback exercise and, most significantly, the letter from Dr Alison Roberts of 1 August 2017.

Dr Sanusi wrote a statement running to some twenty-eight pages, dated 15 September 2017, addressed to the tribunal members. He stated that while he would have liked to read the statement to the panel himself, he was unable to attend because he had limited time off as leave of absence during his training programme. He commented that his statement provided context but that the context became even more meaningful when read together with the evidence and responses previously supplied to the GMC, including those excluded by the GMC. In his statement he produced a detailed narrative of events from his perspective, consisting of denials and including accusations of harassment and abuse by a consultant. He did not accept shortcomings in his patient care nor that he had misled Rotherham NHS Foundation Trust. He included a section headed “Reflection” which conceded that he was fallible and that when things had gone wrong he had used the opportunity to learn and change his practice.

The hearing took place without Dr Sanusi present, starting on 2 October 2017 and lasting through to 18 October 2017. The panel heard from a number of witnesses, both orally and in writing. The bundle of documents was as set out in the attachment to the GMC’s letter of 1 September 2017. In relation to possible mitigation matters it included only the two testimonials from Mr Olubowale and Mr Kolar. The tribunal found the thrust of the charges proved although not every aspect of every charge. In relation to the application to Rotherham NHS Foundation Trust it found that Dr Sanusi had been dishonest in his interview but not in his written job application. The panel found misconduct. It went on to find that the misconduct was serious and that Dr Sanusi’s fitness to practise was impaired. There was no challenge in the appeal to either of those findings.

In relation to impairment the tribunal stated that Dr Sanusi had placed patients at risk of harm, had treated Patients C and F in such a manner as to lead to his dismissal and had claimed that he had resigned due to personality clashes, that he lacked insight and an ability to accept responsibility and had sought to justify his behaviour and blame others for what happened. The tribunal found there was a risk of future repetition of such conduct and that he had also acted dishonestly and presented an ongoing risk to patients and the public.

The tribunal went on to consider sanction. In considering suspension, at paragraph 17 of the sanctions decision, the tribunal stated that it bore in mind the mitigating factors in Dr Sanusi’s case. The incidents all took place whilst working in the same role at one place of employment and there was no evidence of issues with his character or performance either prior to October 2012 or since July 2015. There was also no evidence that Dr Sanusi’s misconduct caused actual harm to patients, although it did pose a potential risk of serious harm. The tribunal had regard to two testimonials from Consultant Surgeons at Doncaster and Bassetlaw which spoke of his abilities in positive terms during his employment there from 1 October 2015 to 4 October 2016. However, the tribunal noted that in relation to the testimonials the authors appeared to be unaware of the nature of the allegations against Dr Sanusi or of the fact of these proceedings, which impacted upon the weight the tribunal felt able to attach to them. The tribunal understood that Dr Sanusi had been undergoing GP training since February 2017, however no evidence had been submitted in relation to this. This last observation clearly resulted from the tribunal’s ignorance of Dr Alison Roberts’ letter, which not only confirmed that the GP training was taking place but also that it was going quite well. The GMC was in possession of that letter and the other documents sent to the caseworker but the tribunal was not. The tribunal concluded that there was no evidence of any meaningful insight, acknowledgement of fault, or steps taken towards remediation and no evidence upon which it could properly conclude that there was any real prospect of remediation in the future. Accordingly the tribunal rejected suspension and proceeded to decide that the only remaining penalty open to it was appropriate, namely erasure.

Mr Gledhill for Dr Sanusi accepted that the tribunal was justified in proceeding with the hearing on 2 October 2017 in Dr Sanusi’s absence. However, he submitted that the tribunal should have paused briefly before embarking on the sanctions stage of the process and should have contacted Dr Sanusi to enquire whether he wished to attend before taking the draconian step of deciding to erase his name from the medical register. He referred to well known principles governing whether an adjournment should be granted in R v Jones (Anthony) [2003] 1 AC 1 and Tate v The Royal College of Veterinary Surgeons [2003] UKPC 34. In the regulatory context he referred to two cases in which it had been held that disciplinary bodies ought to have adjourned before proceeding to consider sanction, namely Lawrance v General Medical Council [2015] EWHC 586 (Admin) at paragraph 39 and Sukul v Bar Standards Board [2014] EWHC 3532 (Admin) at paragraph 34. He submitted that the present case was another such case. He also sought permission to adduce further materials relevant to mitigation which Dr Sanusi would have placed before the tribunal had it contacted him to invite his attendance before proceeding to consider sanction. These documents were not confined to those Dr Sanusi had sent to the GMC’s caseworker. He also submitted that the GMC already had in its possession the documents which were relevant and not placed before the tribunal. They were easily accessible and could easily have been put before the tribunal. Furthermore, Dr Sanusi had specifically requested that they be considered, as part of his statement of 15 September 2017.

Ms Hearnden for the GMC submitted that the authorities relied upon by Dr Sanusi were not persuasive and had been overtaken by the reasoning in the lead judgment of Sir Brian Leveson, President of the Queen’s Bench Division, in General Medical Council v Adeogba [2016] 1 WLR 3867. She accepted that Sukul and Lawrance provided some support for Dr Sanusi’s position but argued that the authorities were in a state of disarray and that other first instance decisions, in particular Faniyi v Solicitors Regulation Authority [2012] EWHC 2965 (Admin) and Held v General Dental Council [2015] EWHC 669 (Admin), were to be preferred as they were in tune with the reasoning of Sir Brian Leveson in Adeogba. She submitted that there was no basis for criticising the tribunal’s failure to adjourn at the stage of considering sanctions. It was not for the GMC to make the doctor’s case for him and he had chosen freely to absent himself. As for any additional evidence, Ms Hearnden submitted that the appellate court should not admit it, as it did not come near to satisfying the well known Ladd v Marshall requirements. Finally, in relation to the materials in the possession of the GMC but not produced at the tribunal at the sanctions stage, Ms Hearnden submitted that it was not part of the GMC’s duty to make the tribunal aware of them.

Mr Justice Kerr held that there was no basis for criticising the decision of the tribunal not to adjourn and contact Dr Sanusi before proceeding to consider sanctions. It was true that there was some support for that course in appropriate cases, but the cases relied on by Dr Sanusi predated the decision of the Court of Appeal in Adeogba, appeared not to have been cited to the court in that case and the reasoning in them was not fully consistent with the thrust of the reasoning in Adeogba. In his judgment the decisions in Sukul and Lawrance should be regarded as having been decided on their own facts and under disciplinary regimes in which the rules were not necessarily to the same effect as those of the GMC, or on the basis of reasoning that had to an extent been overtaken by Adeogba. That did not mean that they were wrongly decided on their facts. Indeed in Adeogba the court emphasised that fairness to the doctor was a prime consideration. What fairness demanded was a question of fact in each case. But in the context of the disciplinary jurisdiction exercised by MPTS tribunals in the case of doctors it would rarely be unfair for a tribunal to proceed straight to the question of sanction, rather than pausing to invite attendance from a defendant who had up to that point hitherto voluntarily absented himself.

Kerr J turned next to consider the question of further evidence. The evidence that Dr Sanusi wished to rely upon in this appeal fell into three categories: documents he sent to the GMC’s caseworker before the hearing, which the tribunal did not see; documents in existence at the time of the tribunal hearing which he did not send to the tribunal; and documents created after the tribunal hearing took place. The judge found no possible basis for allowing Dr Sanusi to rely on appeal to this court on documents falling into the second and third of those categories. To allow that would confer an unfair advantage on a doctor who wished to have a second attempt on appeal at achieving a different result from the unfavourable result reached below, in his absence. It was Dr Sanusi’s responsibility to deploy what documents he wished to rely on at the hearing before the tribunal.

The only real point in the appeal was whether the process before the tribunal was unfair because the tribunal made its decision without seeing documents in the GMC’s possession that were relevant to mitigation, before proceeding to consider sanction, and if so whether that made any difference to the outcome. Ms Hearnden submitted that the GMC was under no duty to place those documents before the tribunal. She argued that while the GMC acted as prosecutor in disciplinary proceedings before the MPTS tribunals, its position was not the same as a conventional prosecutor. It was a party at arms’ length from the tribunal and was not required to conduct the doctor’s case for him. Matters of mitigation were of less moment in this jurisdiction than in others because of the need to protect public confidence in the profession. Furthermore the doctor was required under the relevant rules to engage with the disciplinary process and react to the case brought to the tribunal. Ms Hearnden argued that the tribunal’s ignorance of Dr Sanusi’s documents resulted from his own decision not to attend. Mr Gledhill said that was not correct because Dr Sanusi had actually asked in his statement of 15 September 2017 that the documents in question, which he had provided to the GMC, should be available to the panel in order to provide the necessary context for his position.

Kerr J stated that there were many situations in which an absent party’s point of view had to be considered by a court, tribunal or other body making a decision affecting the absent party’s rights. The situations in which that could arise varied greatly. At one end of the spectrum was the case of a freezing injunction, applied for almost by definition in the absence of the other party. In such cases the duty of candour and of

Burrows v General Pharmaceutical Council [2016] EWHC 1050
Tate v The Royal College of Veterinary Surgeons [2003] UKPC 34
Lawrance v General Medical Council [2015] EWHC 586
General Medical Council v Adeogba [2016] 1 WLR 3867
Faniyi v Solicitors Regulation Authority [2012] EWHC 2965
Held v General Dental Council [2015] EWHC 669
In the matter of Stanford International Bank Ltd [2010] EWCA Civ 137, [2011] Ch 33, [2010] EWCA Civ 692, [2010] 3 WLR 941, [2010] Bus LR 1270, [2010] Lloyd’s Rep FC 357 , [2010] WLR D 55
Jones [2002] UKHL 5; [2002] 2 Cr App R 9; [2003] 1 AC 1

Sanusi v General Medical Council [2019] EWCA Civ 1172