ADJOURNING A HEARING BECAUSE OF A SICK NOTE: COURT OF APPEAL DECISION: MEDICAL EVIDENCE HAS TO ESTABLISH UNFITNESS TO ATTEND HEARING

There have been a number of cases recently relating to applications of hearings on health grounds, in particular the adequacy of the evidence. The relevant principles were reviewed by the Court of Appeal today in General Medical Council v Hayat [2018] EWCA Civ 2796.

THE CASE

The GMC brought proceedings before the Medical Practitioners Tribunal against Dr Hayatl. On the morning of a hearing  before the MDT his counsel applied for an adjournment of the hearing. This was the third such attempt and was done on the basis of a handwritten letter from an A&E doctor stating that Dr Hayat should be “off work for 7 days” due to back pain.  The MDT refused the application and proceeded with the hearing.

THE APPLICATION TO LANG J

The refusal of the application to adjourn did not form any part of the appeal to Lang J in the Administrative Court. However it was raised in a supplementary set of submissions on the morning of the hearing. This led Lang J to allow the doctor’s appeal.

THE JUDGMENT IN THE COURT OF APPEAL

The Court of Appeal reviewed the relevant authorities relating to applications to adjourn based on medical grounds.

“6.1 The Law
a) General Principles
    1. At [44], Lang J identified what she said was the general approach to be adopted when a court or tribunal is considering whether or not to adjourn a hearing or to continue with a hearing in the absence of the defendant. She referred to:
(a) R v Jones [2003] 1 AC 1, a criminal case in which Lord Bingham said that the discretion was “to be exercised with great caution and with close regard to the overall fairness of the proceedings”. In the same case, Lord Hutton said that there could be circumstances “where in the interests of justice a judge is entitled to decide to proceed, particularly when the defendant has deliberately absconded to avoid trial”.
(b) Brabazon-Drenning v UKCC [2001] HRLR 6, where Elias J (as he then was) said:
“…save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with a hearing where there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of disciplinary process.”
    1. Although they were not referred to in Lang J’s judgment, at the appeal before this court, counsel for Dr Hayat relied on two other decisions in similar vein, namely Tait v Royal College of Veterinary Surgeons [2003] UKPC 34 and Norton v Bar Standards Board [2014] EWHC 2681 (Admin). These cases were cited in support of Lang J’s statement of principle that evidence such as the sick note “ought generally to result in an adjournment to give effect to the common law duty of fairness”.
    2. In my view, all these authorities need to be treated with considerable care following the decision of this court in General Medical Council v Adeogba [2016] EWCA Civ 162[2016] 1WLR 3867. There, Sir Brian Leveson, the President of the Queen’s Bench Division, began by noting at [4] that, out of 488 cases which proceeded before this Tribunal in 2014 and 2015, 146 proceeded in the absence of the affected practitioner. Hearings in absence are therefore relatively common, certainly compared to 15 or 20 years ago.
    3. The material part of his judgment for present purposes is, firstly, at [17] – [20] as follows:
“17. In my judgment, the principles set out in Hayward, as qualified and explained by Lord Bingham in Jones, provide a useful starting point for any direction that a legal assessor provides and any decision that a Panel makes under Rule 31 of the 2004 Rules. Having said that, however, it is important to bear in mind that there is a difference between continuing a criminal trial in the absence of the defendant and the decision under Rule 31 to continue a disciplinary hearing. This latter decision must also be guided by the context provided by the main statutory objective of the GMC, namely, the protection, promotion and maintenance of the health and safety of the public as set out in s. 1(1A) of the 1983 Act. In that regard, the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance.
18. It goes without saying that fairness fully encompasses fairness to the affected medical practitioner (a feature of prime importance) but it also involves fairness to the GMC (described in this context as the prosecution in Hayward at [22(5)]). In that regard, it is important that the analogy between criminal prosecution and regulatory proceedings is not taken too far. Steps can be taken to enforce attendance by a defendant; he can be arrested and brought to court. No such remedy is available to a regulator.
19. There are other differences too. First, the GMC represent the public interest in relation to standards of healthcare. It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. The consequential cost and delay to other cases is real. Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed.
20. Second, there is a burden on medical practitioners, as there is with all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”
    1. In addition, some of the remaining paragraphs of the judgment dealing with the application of the principles to the facts in that case are also relevant to the present appeal. In particular:
“59. Further, in my judgment, to suggest that the GMC should have started to make enquiries of the German authorities or, indeed, the Nigerian authorities (on the basis that this was where he came from) is to put a burden on the GMC which is far beyond that which is appropriate. Their responsibility is very simple. It is to communicate with the practitioner at the address he has provided; neither more nor less. It is the practitioner’s obligation to ensure that the address is up to date. In addition, for my part, I am surprised that Dr Adeogba was not very keen to ensure that he kept in touch with the GMC: he was back in Nigeria, unable to earn a living as a doctor; one would have thought that he would be very keen to find out whether and, if so, when he could return to his work. All this is in addition to the point that there is no evidence that communicating with the German or Nigerian authorities would have had the slightest effect.
61. Third, the judge appears to have put emphasis on the fact that this was the first hearing and that an adjournment was unlikely to be highly disruptive or inconvenient to attending witnesses. To suggest that the practitioner must be allowed one (or perhaps more than one) adjournment is to fly in the face of the efficient despatch of the regulatory regime. In addition, an adjournment was highly disruptive: the members of the Panel, the legal assessor, the staff and the accommodation had been set up. There is no suggestion that there was any back up work (which in any event would have been inconvenient to others) and 20 days’ time would have been lost. Even if witnesses were not attending, it is inevitable that they will have been alerted to the date and, until they were stood down, will have suffered all the well-known anxiety associated with any forthcoming trial. Organising another hearing would have been both disruptive and inconvenient. No regulatory system can operate on the basis that failure to attend should lead to an adjournment on the basis that the practitioner might not know of the date of the hearing (rather than having disengaged from the process or even adopted an ‘ostrich like attitude’): any culture of adjournment is to be deprecated.
63. The high-water mark of the criticism that can be made of the decision of the Panel is the reference to voluntary waiver of his right to attend and be represented on the basis that such represents a conscious decision. Bearing in mind the professional obligation to maintain the register (and thus the means of contact) and based on the evidence before the Panel, it was legitimate to conclude that, at the very least, the practitioner had deliberately chosen not to engage with his regulator. In my judgment, in the context of this type of case (whatever the position might be in criminal proceedings), that is sufficient. If it was otherwise, the system simply could not operate efficiently or effectively and although attendance by the practitioner is of prime importance, it cannot be determinative.”
I note that in Adeogba at paragraph 101, this court found no basis to interfere with the discretionary decision to proceed in absence made by the Tribunal. They therefore allowed the appeal.”

THE REQUIRED STANDARD OF MEDICAL EVIDENCE

The Court of Appeal then considered the required standard of medical evidence.
    1. There are a number of authorities dealing with the nature and standard of the evidence necessary to found an application for an adjournment on the grounds of ill health. There must be evidence that the individual is unfit to participate in the hearing: see Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 724 (Ch) at [19]. That evidence must identify with proper particularity the individual’s condition and explain why that condition prevents their participation in the hearing: see Levy v Ellis Carr [2012] EWHC 63 (Ch) at [36]. Moreover, that evidence should be unchallenged: see Brabazon-Drenning at [18].
    2. Of particular importance in this context is the passage from the judgment of Norris J in Levy v Carr Ellis, which deals in detail with what sort of evidence is necessary. He said:
“36. Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5)? In my judgment he cannot. The Appellant was evidently able to think about the case on 24 May 2011 (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted): if he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the Registrar). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.”
    1. This passage was expressly approved by this court in Forrester Ketley v Brent & Another [2012] EWCA Civ 324 at [26]. In the same judgment, Lewison LJ dealt with the width of the judge’s discretion when considering the grant of an adjournment:
“25. His second objection is that Morgan J should have adjourned the hearing on 10 March because Mr Brent was unwell and unable to attend. Whether to adjourn a hearing is a matter of discretion for the first-instance judge. This court will only interfere with a judge’s exercise of discretion if the judge has taken into account irrelevant matters, ignored relevant matters or made a mistake of principle. Judges are often faced with late applications for adjournment by litigants in person on medical grounds. An adjournment is not simply there for the asking. While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing.”
    1. In addition, in Mohun-Smith & Another v TBO Investments Limited [2016] 1 WLR 2919, Lord Dyson MR pointed out the differences between the less rigorous approach applicable to an application under r.39.3(3) and the more rigorous test required by an application to adjourn and, in relation to the standard of medical evidence required for the latter, he said:
“Nothing that I say in this judgment should be interpreted as casting doubt on the guidance given in the Levy case. Generally, the court should adopt a rigorous approach to scrutinising the evidence adduced in support of an application for an adjournment on the grounds that a party or witness is unfit on medical grounds to attend the trial.”
    1. This court has said repeatedly that a pro-forma sick note (of the kind provided here) may well be insufficient to justify non-attendance at a hearing, particularly if it refers only to an unfitness to attend work. Thus, in Andreou v The Lord Chancellor’s Department (22 July 2002), Peter Gibson LJ at [41] said:
“The fact that a person is certified on medical grounds is not fit to attend work does not automatically entail that that person is not fit to attend a Tribunal hearing, though very often that will also be the advice of the medical practitioner.”
In similar vein, at [31] of her judgment in Emojevbe v Secretary of State for Transport [2017] EWCA Civ 934, King LJ said:
“iii) A pro-forma fit [sick] note, without more, may well be insufficient to found either a successful application for an adjournment at first instance or even an application under CPR 39.3(3). In considering whether that is the case, the court would undoubtedly have in mind the pressure under which GPs are working and the difficulties which may be faced by a litigant in person who, without the authority of a solicitor’s letter may face considerable difficulties in obtaining a report containing more detailed information that the bald details found on a fit [sick] note. Equally on the other side of the coin, the court will have in mind the frequency with which late, unmeritorious applications for an adjournment are made.”

SHOULD THE COURT OR TRIBUNAL MAKE FURTHER ENQUIRIES?

    1. The Tribunal has a discretion to conduct further enquiries if the medical evidence does not meet the requirements noted above. Teinaz v Wandsworth London Borough Council [2012] EWCA Civ 1040 makes plain that this is a discretion, not a duty. The courts have generally supported tribunals who have refused to adjourn hearings when presented with medical evidence that was inadequate or insufficient: see Forrester Ketley, by way of example. The onus remains on the individual to engage with the Tribunal and the process, and “a culture of adjournment is to be deprecated”: see Adeogba at [61] where, in addition, at [59], Sir Brian Leveson expressly rejected the suggestion that the Tribunal should have made its own further enquiries. Those passages are set out at paragraph 41 above.
    2. Furthermore, it seems clear that, if a Tribunal is being criticised for not undertaking further enquiries into the medical evidence, the complainant must be able to demonstrate that those further enquiries would have been material and would have been likely to have led to a different decision. In other words, the alleged failure must be material: see Fenwick v Camden and Islington HACA (unreported) 18 April 2000 at [17] – [18]. This was reiterated by Henderson LJ in Terry Simou v Michael Salliss & Another [2017] EWCA Civ 312, where he said:
“60. Mr Collings also rightly accepted that, even if there were a serious procedural irregularity, this court would only allow the appeal and order a retrial if satisfied that the decision of the judge was “unjust”: see CPR rule 52.21(3)(b) (previously rule 52.11(3)(b)) and Hayes v Transco Plc [2003] EWCA Civ 1261 at [14] per Clarke LJ. Whether or not the decision is unjust “will depend on all the circumstances of the case”: ibid.”

APPLYING THOSE PRINCIPLES TO THE CURRENT CASE

The Court of Appeal held that if those principles were applied to the current case the doctor’s appeal should never have been allowed.

  1. In my view, Lang J failed to apply the principles which I have endeavoured to set out above. As a result, she came to demonstrably the wrong conclusion. There are seven separate reasons for that.
  2. First, at [52] Lang J appeared to conclude that, because the sick note post-dated the evidence of Dr Bright and Dr Cunnington, it somehow trumped all that had gone before it. That was wrong in principle; the relevance of the sick note depended on its contents, not its date. Any decision which justifies an adjournment simply on the grounds of timing or date runs the obvious risk of encouraging a culture of adjournment, without regard to the detail of the medical evidence. Lang J compounded this error by saying at [53] that, applying the authorities, evidence of the kind set out in the sick note “ought generally to result in an adjournment”. That is incorrect: as I have explained in paragraphs 34 – 36 above, that is manifestly not the approach set out in Adeogba.
  3. Secondly, the sick note did not say that Dr Hayat was unfit to participate in the hearing. Lang J wrongly equated the statement in the sick note that he could not work with a statement that he could not participate in the hearing, contrary to the principles noted in Andreou and Emojevbe (paragraph 41 above). There was no medical basis for that conclusion and no consideration in the sick note of how the Tribunal might have accommodated Dr Hayat and any symptoms he might have had, or how and why such accommodation was impossible.
  4. Mr Mustakim suggested that the Tribunal’s determination was inadequate because, as he put it, “all they did was to say that the sick note did not refer to the hearing, just to work. That is all they gave him”. I do not accept that criticism. It ignores the basic principle that a pro-forma sick note may well be insufficient to excuse attendance at a hearing if it does not say as much, and it ignores the care and scrutiny that the Tribunal gave to Dr Hayat’s position in all their determinations, including that of 7 November.
  5. More generally, I consider that the sick note was wholly insufficient to warrant an adjournment. It failed to meet the Levy v Carr Ellis test (paragraph 38 above) in any respect. It did not identify who prepared it, although there was a signature. It did not explain what Dr Hayat’s medical condition was or how and why any particular features of that condition meant that he was unable to take part in the hearing. There was no prognosis. There was nothing about the pro-forma sick note which could have allowed the Tribunal ‘to conclude with any confidence that what was being expressed was an independent opinion after a proper examination’. In my view, Mr Dunlop was right to say that it failed every element of the analysis required.
  6. Thirdly, Lang J appears to have assumed that, in some way, the sick note was diametrically opposite to the evidence of Dr Bright and Dr Cunnington. It was not. Indeed, the material in the box dealing with Dr Hayat’s condition, set out at paragraph 28 above, was consistent with what Dr Bright and Dr Cunnington had reported. At its highest, the only matter in the sick note that was even arguably ‘new’ was the reference to “right arm bruising +/- infection”. The bruising could not possibly have justified an adjournment, and it was not suggested to the contrary. The reference to “+/- infection”, although unexplained, would usually mean that there may or may not have been an infection, which takes matters no further forward. Further, no prescription of antibiotics has ever been identified, and the unknown doctor who prepared the sick note does not suggest that he prescribed them. The reference to “continue with antibiotics” is therefore unexplained and may – as Mr Dunlop suggested – have been a simple repetition of what that unidentified doctor had been told by Dr Hayat.
  7. Fourthly, I consider that Lang J was wholly wrong to say at [51] that the GMC’s scepticism about Dr Hayat “could not…justify the Tribunal in disregarding the evidence of a medical professional”, and at [54], that “the Tribunal is not entitled to disregard the GP’s certificate that the appellant was unfit for work” (emphasis supplied).
  8. In my judgment, it is plain on the face of the Tribunal’s written determination of 7 November (paragraph 24 above) that the Tribunal did not disregard the sick note. On the contrary, they carefully considered it, but they concluded that the sick note “essentially reiterates the medical information from during the hospital admission” (i.e. the material from Dr Bright and Dr Cunnington). That was a view to which the Tribunal was plainly entitled to come; speaking for myself, I consider that it is the correct interpretation of the sick note. Other than the bruising (which may well have equated to the ‘complication of pain’ previously noted by Dr Bright) and the possibility of infection, there was nothing new in the sick note at all.
  9. Fifthly, the judge was wrong at [50] and again at [54] to suggest that, in some way, because the sick note had given rise to an arguable case that there should be an adjournment on the grounds of ill-health, it was then up to the Tribunal to carry out further investigations. That was incorrect in principle. The onus was always on Dr Hayat, not the Tribunal: see the authorities at paragraph 42 above. What is more, Dr Hayat was or should have been acutely aware of that: he had been told as much by the Tribunal in their determination of 31 October 2016 (paragraph 11 above) and by the GMC in their letter of 4 November 2016 (paragraph 17 above).
  10. In any event, if there was anything in the suggestion that the Tribunal failed to carry out the necessary further investigations, it could only be because such further investigations would have yielded better evidence which would have met the Levy v Carr Ellis test. But there was no evidence before Lang J, or before us, that any further investigations by the Tribunal into Dr Hayat’s medical condition would have made any difference at all. So even if there was a failure it was not material: see paragraph 48 above.
  11. Indeed, it is one of the most striking features of this case that Dr Hayat has identified no medical evidence that post-dates the sick note of 7 November 2016. In seeking to appeal the Tribunal’s decision he did not at any stage suggest that, if the Tribunal had undertaken its own enquiries, they would have discovered additional medical information that would have demonstrated to them that it was inappropriate to continue in his absence. He has not done that, choosing instead to stand or fall on the terms of the sick note alone.
  12. Sixthly, we were referred to the sick note in TBO, which simply said that “because of the following condition; family stress, I advise you that you are not fit for work”. I accept Mr Dunlop’s submission that this was, for material purposes, indistinguishable from the sick note in the present case. In TBO, the Court of Appeal said that the judge in that case could not be criticised for dismissing the sick note; indeed, had the r.39.3 application been based on that alone, it would have failed even the less rigorous test applicable to that rule. In just the same way, I consider that the Tribunal cannot be criticised in this case for considering the sick note but concluding that, in the round, the case for an adjournment had not been made out.
  13. Finally, I consider that the Tribunal was entitled to weigh up the (inadequate) sick note against all of the other material available to them. This included not only the existing medical evidence (and the fact that the sick note was broadly consistent with that other evidence, and not contrary to it) but also the fact that Dr Hayat had already made three unsuccessful applications to adjourn this hearing on entirely different grounds, each without success.
  14. In addition, as part of these wider considerations, there was also the question of the public interest. The Tribunal had already referred to that in their determination of 31 October 2016 (see paragraph 11 above). Any adjournment causes extensive disruption and inconvenience and wastes huge amounts of costs. That would have been particularly acute here, given the number of witnesses and the length of the hearing. Those again were relevant factors which the Tribunal was entitled to consider when arriving at its conclusion.
  15. For the avoidance of doubt, I accept the point made by Mr Mustakim that these wider considerations also included the potential consequences for Dr Hayat if the matter went ahead in his absence. But, since there was no medical evidence to persuade the Tribunal that his absence was involuntary, that was of little weight. Moreover, I consider that the consequences of non-attendance were self-evident: they did not need setting out in the determination of a specialist tribunal.
  16. For all these reasons I consider that Lang J erred in principle in addressing the way in which the Tribunal reached its decision. The Tribunal was entitled to take into account all it knew, and put the sick note in the context of the other medical evidence, and the case overall. In my view, that is precisely what they did. Their decision to proceed in Dr Hayat’s absence was unimpeachable and in consequence, if my Lords agree, this appeal must be allowed.