Neutral Citation Number: [2009] EWHC 3260 (Admin)
Case No: CO/9164/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11 December 2009

Before :

HIS HONOUR JUDGE DAVID PEARL
Sitting as a Deputy Judge of the High Court
- - - - - - - - - - - - - - - - - - - - -
Between :

	DR. EDWARD EMMANUEL	Appellant	
	- and -		
	(1)  SOUTH GLOUCESTERSHIRE 
PRIMARY CARE TRUST
(2)  FAMILY HEALTH SERVICES 
APPEAL AUTHORITY	Respondents	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Ms F Neale (instructed by Eastwoods Solicitors) for the Appellant
Ms N Khalique (instructed by Bevan Brittan LLP) for the Respondents

Hearing dates: 4 December 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
HHJ David Pearl : 
1.	This is a statutory appeal to the High Court pursuant to s 11(1) of the Tribunals and Inquiries Act 1992 against the decision of the Family Health Services Appeal Authority dated 16th July 2009 directing that the Appellant (Dr Edward Emmanuel) be removed from the South Gloucestershire Primary Care Trust “medical performers list” under the Health Services Act 2006 (as amended) on grounds that he is unsuitable to be included in the list. The Appellant’s appeal is based on the grounds that the hearing was procedurally unfair, rendering the decision unlawful.
2.	The background facts are set out in the determination paragraphs 2-11, and can be summarised as follows. Dr Emmanuel joined the West Walk Surgery as a GP partner on 4th January 1999, and was included on the PCT “medical performers list” on 2nd January 2004. 
3.	In or about June 2008, the PCT were informed by a person referred to in the determination as an “anonymous whistle blower” of certain allegations relating to the Appellant, namely that he had engaged in an improper relationship with a former patient (Ms LJ) and by whom he had fathered a child. 
4.	The complaint was investigated by the PCT and there followed an oral hearing by the PCT. He was suspended from the “medical performers list” and the GMC were informed of the allegations. There was then a removal hearing on 11th March 2009, and the Appellant was removed from the list, on the grounds of unsuitability. 
5.	He appealed to the FHSAA, by way of a redetermination. The FHSAA dismissed the appeal and directed that the Appellant be removed from the PCT on the grounds that he is unsuitable, pursuant to the National Health Service (Performers List) Regulations 2004. In addition, in accordance with Regulation 18A of those Regulations, the Panel invited the Respondent to consider making a formal application to the Panel to it to consider whether there should be a national disqualification.
6.	The key finding made by the Panel is contained in paragraph 150 of its determination. The Panel said: “The Panel finds that the Appellant has used his position as a GP to establish and pursue an improper relationship with LJ, both as a patient and a former patient. The Panel finds this to be an abuse of the doctor-patient relationship which is based on trust. The underlying issue is LJ’s susceptibility to the Appellant’s undue influence.”
7.	The hearing took place on 2nd July 2009 at a hotel in Birmingham, during the course of one day’s sitting. The hearing concluded at 19.45pm. The Panel heard evidence from Ms Tracey Cubbage (the Head of Governance at the PCT) and Dr Mansfield (LJ’s GP). It heard evidence also from Dr Emmanuel on his own behalf. So far as documentary evidence was concerned, the Panel had before it typed notes of face to face and telephone interviews between LJ and Ms Cubbage and Dr J Hayes dated 22nd August 2008, 10th November 2008 and 22nd January 2009. No handwritten notes of the interviews were considered by the Panel, and the Panel did not hear from LJ directly.
8.	The grounds of appeal are three fold:
i)	The approach to the evidence of LJ, and in particular the fact that reliance was placed upon LJ’s written and, on some issues, inconsistent evidence as set out in the interview notes in preference to the Appellant’s oral evidence in circumstances where the main issues of fact were disputed;
ii)	The lack of disclosure of any handwritten notes of the telephone and face to face interviews;
iii)	The length of the sitting day.
9.	 Ms Neale on behalf of the Appellant submitted that the central issues before the Panel were the date the sexual relationship between LJ and Dr Emmanuel started, and the nature of the patient/GP relationship between Dr Emmanuel and LJ prior to the commencement of the sexual relationship. There was thus a dispute of fact between LJ and Dr Emmanuel, and Ms Neale submitted that only two people could provide the Panel with evidence on the matter, and that it was incumbent on the Panel to assess the conflicting evidence and form a view as to where the truth lay.
10.	Dr Emmanuel did not deny that he had a sexual relationship with LJ, and indeed that he has fathered a child with LJ. He did however strenuously deny that he had a sexual relationship with her whilst she was his patient. He also strenuously denied to the Panel that his relationship whilst LJ was a patient of his was anything other than professional, and he said that she changed surgery when it was agreed that LJ would work for him as a cleaner, and Dr Emmanuel felt that it would therefore be inappropriate for LJ to remain a patient of his as well as an employee of his.
11.	LJ’s evidence about the relationship with Dr Emmanuel is contained in the typed notes of the interviews. Ms Cubbage confirmed that notes taken on 22nd January 2009 represent a full and accurate record of the discussion on that day and that all the information she has provided is to the best of her knowledge, true. The challenge to the Decision of the Panel is that no opportunity was afforded to the Appellant to cross examine LJ, in particular in relation to her inconsistent accounts in the three interviews relating to the date on which she entered into a sexual relationship, as well as other matters that may have gone to her credibility. It is submitted on behalf of the Appellant that there was no opportunity to test her evidence against the documents that were submitted, and that the Panel did not have the opportunity of comparing her demeanour with that of Dr Emmanuel, and testing and assessing the credibility of each of them.  
12.	Ms Neale developed this submission by stating that LJ’s evidence went to the heart of the issue, that her evidence was on the face of it inconsistent and that the inaccuracies and inconsistencies could not be explained by any verifiable explanation, in the absence of corroboration. 
13.	I deal with this challenge first. It is of course true, as submitted by Ms Khalique, on behalf of the Respondent, that the High Court, on a statutory appeal of this kind, will be reluctant to interfere with an exercise of discretion by a Tribunal or Panel. The Courts will be slow to interfere with any decisions unless the Tribunal or Panel can clearly be shown to have gone wrong in law. 
14.	 In  this case, the Tribunal exercised its discretion not to call LJ to give evidence before it, as it had the power so to do under Rules 41(2) and 35(1) of the Family Health Services Authority (Procedure) Rules 2001 (2001 SI 3750).  Rule 41(2) states that the panel shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings. Rule 35(1) permits the panel on its own motion by summons to require any person to attend as a witness and at the hearing to answer any questions or produce any documents in his custody or under his control which relate to any matter in question in the appeal. No person shall be required to attend in obedience to such a summons unless he has been given at least seven days’ notice of the hearing (rule 35(2)(a)).
15.	The Panel deals with LJ’s evidence from Paragraph 102-114  of the determination,  it then considers Dr Emmanuel’s evidence (paras 115-138)and concludes at para 139 that “in considering the totality of the evidence, that the evidence of LJ is reliable and is to be preferred to that of the Appellant.”  
16.	At para 102, the Panel state that it is regrettable that LJ did not attend to give oral evidence. The Panel state: “The Panel was advised that the Respondent had had discussions with LJ about giving oral evidence but she declined to do so. The giving of oral evidence is important because it affords the Appellant the opportunity to test the evidence directly.” The Panel then state in the paragraph immediately following: “However, the fact that oral evidence from a principal witness has not been adduced does not mean that their approved and signed statements are not reliable.”
17.	As I have said, this Court will only interfere with the exercise of discretion by the Panel if the exercise of discretion not to summon LJ amounted to an error of law.  I have decided, however, that Ms Neale’s submission that it did amount to an error of law has force and I so find.
18.	 It has force for the following reasons. First, and perhaps foremost, the date when the sexual relationship started was fundamental. [See Nwabueze v GMC. Privy Council Appeal No 21 of 1999)].  
19.	The Court of Appeal in SSHD v Sim & Parole Board [2003] EWCA Civ 1845, in the context of Parole Board cases, evaluated the submission that “both in terms of common law fairness and under Article 5 (not relevant here of course) a claimant should be able to cross-examine witnesses on the contested matters of fact.” It rejected that broad proposition. Munby J said:
“merely because some factual matter is in dispute does not render hearsay evidence about it in principle inadmissible or prevent the Parole Board taking such evidence into account. It should normally be sufficient for the Board to bear in mind that that evidence is hearsay and to reflect that factor in the weight which is attached to it. However, like the judge below, I can envisage the possibility of circumstances where the evidence in question is so fundamental to the decision that fairness requires that the offender be given the opportunity to test it by cross-examination before it is taken into account at all. As so often, what is or is not fair will depend on the circumstances of the case.”

20.	 His Honour Judge Pelling QC, sitting as a Judge of this Court, in The Queen on the Application of Peter Gannon and the Chief Constable of Merseyside Police [2009] EWHC 2133(Admin) said much the same, but of course in a different context:
“It is plainly necessary that a disciplinary hearing should be fair not least because of the potentially grave consequences of such proceedings for someone in the position of the Claimant. Fairness requires that there be a hearing at which an accused officer has the opportunity to question the witnesses against him where he disputes the factual allegations made by those witnesses.”
21.	In Secretary of State for Health v C [2003] EWCA Civ 10, Latham LJ said: “...when there are discrete issues as to which oral evidence could be expected, the fact that the witness has not been called will be a matter which the Tribunal must take into account when it seeks to evaluate the evidence of that witness.”
22.	In The Queen on the application of Dr SS v Knowsley NHS PCT and The Queen on the application of Dr JK Ghosh and Northumberland NHS PCT [2006] EWHC 26 (Admin), Toulson J in a context relevant to the present application said: 
“The panel would obviously be in a far better position to reach a fair judgment whether the complaints are true if they hear from the complainants and Dr S, and their stories are tested, than if the panel’s evaluation of the witnesses’ credibility is based on their untested statements and Dr R’s opinion about their credibility.”
23.	There will of course be cases where the Panel will not have the benefit of live direct evidence from a witness on behalf of the Respondent, often of course because that witness is treated as vulnerable. It may well be that LJ fell into this category and there is a Statement from Dr K Mansfield dated 3rd November 2008 that was available to the Panel where Dr Mansfield states that she considers LJ to be a vulnerable individual. 
24.	I agree with Ms Neale, however, in her criticism of the Panel’s determination, in that nowhere in the determination does the Panel assess either LJ’s vulnerability or her reluctance to give evidence, and nowhere in the determination does the Panel state that it has placed the failure of LJ to give evidence to the Panel in the matters that affect its conclusions on the evidence. Thus this case is very different to Secretary of State for Health v C [2003] EWCA Civ 10 where the allegation was that “C” had raped and indecently assaulted “S1”,and where a reason had been given to the Tribunal for the absence from the hearing of “S1”.  According to Thorpe LJ “...it was explained by a psychiatric report offered by the Secretary of State...”
25.	Having decided that the panel fell into error for this reason, it is not necessary for me to deal with the other grounds of challenge. Suffice it to say that on the issue of the failure to provide the handwritten notes, I find nothing in the way in which the Panel dealt with that matter that is open to challenge. They heard directly from one witness who stated in terms, so I understand, that the typewritten notes corresponded to her handwritten notes, and I find that the Panel was acting well within its discretion to refuse the request, which was made on the day of the hearing. 
26.	So far as the third matter is concerned, the length of the proceedings, I heard submissions from both Ms Neale and Ms Khalique as to what happened on that day. It would seem that the case had been listed for two days, but that Ms Khalique had not been informed of this listing arrangement. The Panel continued to sit until 19.45pm, in order to conclude the hearing in one day and so as to avoid going part-heard. Ms Neale submitted that the decision of the Panel to sit until 19.45pm, and to ask her to make her submissions at the end of a very long day amounted both to an absence of fairness and an absence of the appearance of fairness. I was told by Ms Neale that she made an application to the Panel for her to make her submissions the following day, and that she suggested to the Panel that Ms Khalique (who had professional arrangements the following day) did not need to be present. This approach was rejected by the Panel, and accordingly both Counsel made their submissions at the conclusion  of the evidence.  
27.	I have to say, from the perspective of presiding over Tribunals for many years, that sitting hearing evidence and submissions, even with breaks, up until 19.45pm, should be avoided if at all possible. The cases that deal with long retirements imposed on juries (for example R v Akano and R v Amure, The Times April 3rd 1992) talk of tiredness or irritation, and I can well see that Counsel were tired when making their submissions so late on that occasion, and of equal importance, the Panel may well have been tired when listening to the submissions at such a late hour. Good practice surely demands that Tribunals and indeed Courts should not place themselves in a situation where their sitting hours become so unreasonable that it can no longer be stated with any certainty that the conduct of proceedings is fair. As I have already decided to quash the decision for the reason already set out because of the Panel’s treatment of the evidence of LJ, it is not necessary for me to make a finding in relation to this matter.
28.	I would hope however that my comments are drawn to attention of the Senior President of Tribunals (Carnwath LJ) and his judicial colleagues who preside over the chambers of the Upper and First tier Tribunals (of which FHSAA becomes a part on 18th January 2010) so that similar difficulties to those which occurred in this case can be avoided.
29.	I quash the decision of the FHSAA and direct that the appeal by Dr Emmanuel be redetermined by a fresh panel of the FHSAA. As the FHSAA is incorporated into the Health Education and Social Care Chamber of the First Tier Tribunal as from 18th January 2010, it is a matter for consideration whether the case be heard by a panel from that Chamber. This is an issue that can be appropriately considered at a Directions hearing of the FHSAA prior to 18th January 2010.  
30.	Order Accordingly.