This article originally appeared in Issue 6 (September 2020).
In General Medical Council v Zafar  EWHC 246 a Divisional Court of the High Court affirmed two propositions: one surprising, one not. Unsurprisingly, the court affirmed the proposition that doctors who prepare dishonest medical reports for use in civil litigation can expect to be struck off. More surprisingly, the court held that the GMC was entitled to admit prejudicial material on appeal notwithstanding a clear agreement at first instance that such material would not be admitted.
Dr Zafar was a GP who provided medical reports for use in low level personal injury claims. He initially provided a medical report stating that the Claimant had mild symptoms of pain and stiffness in his neck which had resolved after about 1 week. At the solicitor’s request, he later amended the report – without seeing the Claimant – to say that there was persistent neck pain that would resolve within 6 to 8 months. After both reports were disclosed to the Defendant in error the Defendant’s insurer initiated contempt proceedings against Dr Zafar.
The contempt proceedings initially came before Garnham J. He committed Dr Zafar to prison for 6 months, suspended for 2 years. The Defendant’s insurer appealed that sentence to the Court of Appeal on the basis that it was unduly lenient. The Court of Appeal agreed. In its judgment, it indicated that an immediate sentence of between 9 and 12 months’ imprisonment would have been appropriate. The Court of Appeal gave detailed guidance as to the factors that were relevant when passing sentence in such cases.
The GMC Proceedings
Dr Zafar subsequently referred himself to the GMC. When the matter came before the MPT it was agreed between Dr Zafar’s legal team and the GMC’s legal team that the MPT would not see a copy of the Court of Appeal’s decision. The reasons for that agreement were not entirely clear. It was presumably on the basis that the allegation was drafted in such a way as to refer only to Garnham J’s judgment. The MPT’s determination, which was thus delivered in ignorance of the Court of Appeal’s guidance, was that Dr Zafar’s registration should be suspended for a period of 12 months.
The GMC’s Appeal to the Divisional Court
The GMC, joined by the Professional Standards Authority for Health and Social Care, appealed on sanction. They contended that the only proper sanction was erasure. Both appellants relied heavily upon the contents of the Court of Appeal’s judgment. In response, the doctor argued that the GMC could not rely upon the Court of Appeal’s judgment; the GMC was bound by the agreement below that this judgment would not be admitted into evidence. The PSA could be in no better position.
The Judgment of the Divisional Court
The Court held that there was both a short answer and a long answer to the doctor’s ‘binding agreement’ point. The ‘short answer’ was that the PSA was not party to the proceedings below. It followed that the PSA was not bound by the agreement for the purposes of their statutory appeal.
The ‘long answer’ was as follows. In ordinary civil litigation the parties would usually, in the interests of finality, be held to their compromises, be they wise or unwise. However, this was not ordinary civil litigation. These were proceedings conducted in the public interest with the object of protecting the public. The fact that regulatory proceedings were conducted in the public interest did not displace the usual need to satisfy the Ladd v Marshall principles when adducing ‘fresh evidence’ on appeal. However, the public interest was “certainly a factor relevant to the overall exercise of discretion”.
The GMC’s first instance agreement to exclude the Court of Appeal’s judgment was “wholly erroneous and should never have been made”. It operated to “distort the hearing before the MPT and its attempt to achieve a fair and just outcome”. Taking into account the Court of Appeal’s judgment the court concluded that the only proper sanction was erasure: “What he did, exploiting his position as a doctor and as an expert witness, struck at the very heart of the administration of justice and involved an abuse of the trust which the Court have to accord to experts”.
On the face of it, the principle affirmed by the Court of Appeal may look harsh or unfair. The GMC was permitted to go behind an ill-judged but nonetheless clear agreement with the doctor’s legal team that prejudicial material would not be admitted at first instance. Moreover, it is clear that the Ladd v Marshall principles apply as much to regulatory proceedings as to other types of case: see GMC v Adeogba  EWCA Civ 162. This includes Lord Denning’s principle that: “it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial”. It is difficult to see how that principle could be satisfied where available evidence was excluded by agreement below.
However, in the author’s view, the decision is best viewed as one that is confined to its own peculiar facts. First, the material being admitted on appeal was not aptly characterised as “fresh evidence”: it was a reported decision of the Court of Appeal. Second, the decision by the GMC to allow the MPT to proceed on the mistaken assumption that the Garnham J’s judgment remained authoritative was plainly and conspicuously wrong. Third, the PSA was a party to the appeal. The Divisional Court was clearly right to find that the PSA was not bound by an erroneous concession below, to which it was not a party and was contrary to the public interest.