Case - R (on the application of Sabah Al-Zayyat) v. General Medical Council

[2011] Med LR 174, Administrative Court - Mary O’Rourke QC
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There was no evidential support for the General Medical Council's fitness to practise panel's decision that a paediatrician had been deliberately and voluntarily absent from her misconduct hearing. The psychiatric evidence was that she did not have the capacity to participate effectively in the hearing.
 
The claimant paediatrician (Z) applied for judicial review of a decision of the defendant GMC's fitness to practise panel that she had deliberately and voluntarily absented herself from her misconduct hearing.

Z had examined a baby two days before he died of multiple injuries. The baby's mother and boyfriend were convicted of causing his death. Z gave evidence at the trial and thereafter faced much media attention. The GMC alleged misconduct against her on the basis of her examination of the baby and her subsequent application for a job in Ireland in which, it alleged, she had misrepresented her situation by stating that she knew of nothing in her past conduct that would pose a problem in the post she was seeking. The day before the misconduct hearing was due to begin Z went to Saudi Arabia, where she had family. Before she went, she was examined by a psychiatrist, who opined that she was unfit to defend herself or to instruct solicitors; she had suffered a complete breakdown in her mental health and was suicidal. On arrival in Saudi Arabia she was admitted to hospital. The fitness to practise panel decided against proceeding in Z's absence and adjourned the matter. Z applied for voluntary erasure from the medical register. That application was rejected and the disciplinary hearing was reconvened. The panel heard psychiatric evidence about Z, which was to the effect that she was incapable of effectively participating in the hearing and would probably break down if she attended. The panel's legal assessor advised it that the critical issue was whether Z was genuine or faking her incapacity, and reminded it that two doctors had effectively said that she could not take part in the hearing. The panel decided to continue, finding that Z's absence at both hearings had been voluntary and deliberate.

HELD: The panel had concluded that the medical evidence did not give a clear indication that Z was genuinely or involuntarily incapacitated; viewed as a whole, however, the evidence did give such an indication. The panel had been advised by the legal assessor that the critical issue was whether or not Z was faking her inability to address the detail of the case but it had made no determination on that issue. The panel had been of the firm opinion that Z's absence was voluntary and deliberate; the basis for that conclusion was not, however, clear. On analysis, there was simply no support for the panel's conclusion that Z's absence from the proceedings was not justified. The panel's decision would therefore be quashed (see paras 28, 31-32, 34-35 of judgment)

Application granted
 
Counsel For the claimant was Mary O'Rourke QC.
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