Squier, R (on the application of) v General Medical Council

This is the rolled up hearing of an application for judicial review of two decisions of the Fitness to Practise Panel, FTPP, of the Medical Practitioner’s Tribunal Service of the General Medical Council. The registrant Claimant faces allegations that her fitness to practise is impaired. The first decision of 23 September 2014 held that five judgments of the High Court and one of the Court of Appeal Criminal Division in six cases of alleged non-accidental head injury to infants, “shaken baby syndrome”, in which the registrant had given evidence as an expert consultant paediatric neuropathologist, would be admitted in evidence subject to redactions to exclude most, but not all, says the Claimant, of the adverse comments and findings in the judgments. The issue before the FTPP concerned the relevance and fairness of admitting those judgments as evidence, especially in the light of the vagueness by the General Medical Council as to the role which those judgments would play and in the light of the gravity of the allegations Dr Squier faces. These include allegations that she deliberately misled the courts and acted dishonestly. Dr Squier has declined to suggest further redactions to the judgments, though pointing in these proceedings to remaining comments seen by her as adverse.

The second FTPP decision of 23 September 2014 was to the effect that, with some changes, the allegations against Dr Squier were adequately particularised. Further amendments were made without opposition on 26 September 2014. The GMC then applied to amend the allegations, giving further particulars; and in a decision of 17 December 2014, the FTPP agreed. Those amendments were not opposed but that decision, though not formally challenged, does not deal with the gravamen of Dr Squier’s complaints about the earlier decision.

The Claimant seeks the quashing of those decisions. The matter is of some urgency as the 40 day FTPP hearing is due to commence on 2^nd March 2015 though the case might be postponed to September 2015 with an 80-90 day estimate. The FTPP case is one of considerable complexity. There may be three stages in total to the FTPP proceedings: findings of fact in relation to the allegations, then a finding as to whether or not the Registrant’s fitness to practise was impaired, and if so consideration of sanction. This challenge to the decision on admissibility only relates to the admissibility of the judgments at the first stage of finding facts in relation to the allegations. Sir Robert Francis QC for the Claimant accepted that different conclusions might, but not necessarily would, apply at either of the two later stages. The FTPP in its decision recognised that different considerations might apply at those stages as well.

The FTPP proceedings concern evidence given by the Claimant in six cases as an expert witness between 2006 and 2010. Her evidence was subject to severe judicial criticism, though it was not the judges but the National Police Improvement Agency which made the complaint in 2010 leading to these proceedings.

The allegations as they stand after the 18 December 2014 decision may not yet be in their final form as the GMC can still seek further amendments, whether to give more particulars of the allegations or not. However, currently the allegations are listed by reference to each of the six cases in sequence. There are many common features; I take the first case out of the six in the list as an example.

“2 a) You provided expert opinion evidence outside your field of expertise by:

i)

presenting opinion evidence, based upon biochemical research, as to the likelihood that a low level fall could have caused the brain injury which baby ‘A’ suffered;

ii)

presenting opinion evidence based in the fields of ophthalmic pathology and/or ophthalmology;

iii)

giving an opinion in relation to the likelihood of baby A having had a lucid interval between injury and death.

b)

You made assertions in support of your opinion which you knew or believed were insufficiently founded upon the evidence available, in that you:

i)

asserted that baby A had vomited four or five times between an alleged fall at approximately 16:30 and 23:30 and that ‘baby A vomited repeatedly over the next five hours’;

ii)

asserted that there was a left sided unilateral subdural haemorrhage.

c)

You provided expert opinion evidence in which you purported to rely upon research papers including those set out below, whereas in fact the research did not support your opinion in the way in which you suggested, namely that in the circumstances of this case an accidental low level fall as opposed to an inflicted injury could have caused the brain injury:

[6 research papers are identified]

d)

You provided expert opinion evidence in which you purported to rely upon research papers including that set out below, whereas in fact the research did not support your opinion in the way in which you suggested, namely that the child may have had a lucid interval:

Arbogast KB et al (2005)

The same pattern is in essence repeated in relation to the evidence given by the Claimant to the CACD on appeal against conviction.

The FTPP was satisfied that the case was adequately particularised, in part because Dr Squier could cross refer the allegations to a schedule of evidence and then further to the GMC’s then draft opening statement for the detail of the “wrap up” charges, allegations 4 and 5, in the example of the allegations I have given. No specific point from the judgments is relied on formally as part of any allegation. None of the allegations, either in the example cited or in any of the others, are particularised by reference to any finding in the judgments. I note that allegation 5 now reads that the Claimant’s conduct reads was “likely to bring” the reputation of the medical profession into disrepute rather than “did bring” its reputation into disrepute as it had before. This is in the light of the extensive redaction of the judicial criticism of Dr Squier from the judgments.

The schedule of evidence dated July 2014 is by name just that. It starts with warnings as to its role. It says that it was drafted for the assistance of all parties and “is an overview of the GMC evidence underlying each of the factual allegations. It does not bind the GMC in the presentation of its case. The GMC is not limited to presenting its case to the evidence referenced in the schedule. This schedule only lists the factual allegations against Dr Squier. The general allegations (such as failing to discharge her duties as an expert; dishonesty; failing to act objectively; etcetera) will be a matter of inference for the panel having heard all of the evidence.”

I take, by way of example, allegation 2a from the first set of allegations which I have referred to above. This is cross referenced in the schedule to evidence comprising various reports by Dr Squier with page numbers, to the civil and criminal hearing transcripts with page references, and to “supporting evidence” which comprises the GMC expert’s reports with page references and paragraphs of the judgment; the paragraphs in the judgment have not yet been updated in the schedule to take account of redactions so some references are to now redacted paragraphs. The judgment is referred to in the schedule in relation to allegations 2(a)(i), 2(b)(i) and (ii), also making a third point, as if it were part of the allegation, to the effect that evidence that vomiting may have been the result of viral infection was ignored (that may have been dropped now as an allegation though remaining in the schedule for want of updating). Allegations 2(c) relating to research papers cross refers as “evidence” to passages in Dr Squier’s reports, transcripts and “supporting evidence” from the GMC’s experts. No particulars whatsoever are provided in the Schedule of allegation 3.

The draft opening statement, in its current form, post-dating the decisions challenged and reflecting the current redacted versions of the judgments and the current version of the charge adds some information about the allegations. I take the same first case, which was the example examined in court, simply because it was the first case on the list of allegations. But its form was not said to be atypical or aberrant. There is more narrative and explanation in the opening statements on allegations 2(a) and (b) but there is no mention of viral infection. A narrative of varying degrees of detail is provided in relation to allegation 2(c) concerning research reports but it is often very little. It only provides examples of an allegation, not the allegation as formulated in the list of allegations, but instead of an allegation that “when giving evidence she does not always cite the research she is relying on very clearly”. The example cited in the opening from Dr Squiers evidence is “there are certainly two [case descriptions of babies who have low falls and subdural and retinal haemorrhaging] in one of the papers that I have cited”. The opening then takes her to task because she “had failed to mention any of the specific features and finding of that report which were” then set out. What specifically it “did not support in the way you suggested” is not set out. The opening brings all the research reports under one heading though the report of Arbogast is only relevant in the list of allegations to allegation 2(d) and none of the others are. Arbogast’s report is treated as if it was a piece of research along with Vinchon, which features in allegation 2(c). Allegation 3 again is not referred to at all.

Rule 34 (1) of the General Medical Council’s Fitness to Practice Rules 2004, as amended, provides:

“The committee or a panel may admit any evidence which they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law.” S.I. 2004 No. 2608.

The FTPP accepted the submissions of its legal assessor that the issue was whether admitting the judgments in evidence would be relevant and fair at the finding of fact stage. It dealt first with relevance.

“23.

The panel noted Mr Francis’ submission that a judge’s view set out in a judgment was no more valid than a member of the public sitting at the back of the court making notes on the case. The panel wholly rejected that proposition.

24.

The panel accepts your submission that the factual elements of the judgments will assist the Panel’s understanding of the background facts relating to the circumstances of each child’s injury or death as found. The panel notes that the admission of the judgment is not conclusive evidence of any of the background facts. The GMC must still prove what Dr Squier did or did not do in the context of those background facts. Dr Squier and her representatives will have the opportunity to challenge the background facts of the judgements where necessary.

25.

The relevance is two fold: in order to give context to each of the child protection cases; and to understand the evidence and the context in which that evidence was given by Dr Squier.

26.

The panel considered that the judgments in so far as they deal with factual matters are relevant as prima facie evidence of those facts.”

The FTPP also concluded that admitting the judicial commentary within each judgment was relevant to showing that Dr Squier’s conduct had in fact brought the profession into disrepute. The panel then dealt with fairness in the light of its decision on relevance. The panel rejected Sir Robert Francis’ suggestion that context could be established by an agreed schedule of facts and admissions. The GMC had submitted that the Claimant could simply stop the whole process by denying all the facts. It had submitted that “in the absence of the judgments being admitted as prima facie evidence of the facts of the child protection cases it would have a significant task in proving all of the underlying matters in those cases.” Before me Mr Kark QC for the GMC put that point yet more strongly. The FTPP rejected Sir Robert’s submission on the grounds that there would be no guarantee without the judgments that “the case would be able to move any further forward”. The resources required in the production of such a schedule as proposed by Sir Robert would be large; the alternative he had suggested was neither fair nor proportionate.

In essence, the FTPP concluded as follows:

“31.

The panel was concerned that there was likely to be a significant amount of material to establish matters which were not directly relevant to the allegations that Dr Squier faces. It potentially included a GMC file of 14,000 pages and it noted expert evidence in one of the child protection cases alone took four weeks. In essence, the panel was being invited to rehear the entirety for the child protection cases. The panel relied on the authorities that it is not required to conduct itself as a court of law rehearing all the evidence underlying the court’s findings. The panel bore in mind that it has a duty to hear challenges to the evidence and attaché [sic] appropriate weight; and that the findings of the courts were not irrefutable when it comes to making due inquiry into the case.

32.

The panel was satisfied that admitting the judgments was a proportionate means of settling the background to the child protection cases and that alternative means were likely to be disproportionate and unfair to the GMC in prosecuting the case.

33.

The panel took account of submissions made on Dr Squier’s behalf that it should rely on the primary evidence rather than judgments. The panel decided GMC v Meadow 2006 EWCA Civ 1390 was supportive of the propositions that: a) the facts of the case can only be understood in context to the judgments; and b) a proper assessment as to a doctor’s misconduct could only be undertaken by having regard to the judgments that led to the allegations of misconduct. The panel also noted that it would be necessary to give appropriate weight and to have an understanding of the context in which a doctor gives evidence as a witness in court. This is a necessary part of dealing with that evidence fairly.”

The panel rejected the argument that the judgments should not be admitted because Dr Squier herself had not been a party to those proceedings. It considered whether the probative value of the judgments outweighed the potential for prejudice to her. Yet it accepted that the judicial comments were not admissible “as evidence of the validity of the judges’ criticisms.” The potential for prejudice arose not from the fact that a professional tribunal would read prejudicial material, which it could put out of its mind; it arose from the reinforcement directly or indirectly by counsel and witnesses constantly referring to the criticism during the long FTTP proceedings. The media might give extensive publicity “to the more colourful criticisms in the child protection cases” which the panel considered might be unfair to the registrant. Hence there was a balance in favour of redacting certain parts of the commentary.

In the light of that, it was satisfied that it would be fair to admit the judgments “to prove background facts, in the context of which Dr Squier’s alleged misconduct occurred”. It then said that it was aware that the “GMC still had to prove the underlying facts and the prejudicial versus probative value of allowing that commentary favours some element of redaction of the judgments”. It would be fair after redactions to admit the judgments “to prove prima facie facts”.

It was evident from the comments in a later FTPP decision that it thought that the redactions agreed by the GMC went rather further than it had intended.

Rule 15(2) of the Fitness to Practise Rules provides that “the notice of hearing shall (a) particularise the allegation against the practitioner and the facts upon which it is based.” The Panel again accepted the legal assessor’s advice: sufficient particulars were required so that Dr Squier would know the case that she needed to answer; minute details in the allegations were not needed. It said this in paragraph 17:

“The panel is not persuaded by Mr Francis’s submissions that Dr Squier does not know the way in which her conduct is being impugned by the GMC, such that she cannot mount a defence. The panel is satisfied that by cross referencing the schedule and the allegation, it is possible for a defence in regard to the “wrap up” allegations to be sufficiently mounted on her behalf. Further reference can be found in the GMC’s opening statement where detail is given in relation to the nature of the “wrap up” charges.”

The panel commented on the two paragraphs at the top of the schedule of evidence, to which I referred above, saying that it would expect, contrary to what was there said, that the GMC’s case would be based upon the particularised references in the schedule. Although it recognised that evidence might change before the hearing, it would expect a similarly detailed document for Dr Squier’s representatives to rely on. The panel was not restricting the GMC in relation to evidence which might further impugn or exonerate Dr Squier “but it must rely on that schedule and opening as the core of its case”. Dr Squier could therefore prepare her case in relation to the wrap up allegations, including dishonesty. The later decision adds nothing of note for these purposes.

Mahfouz v GMC [2004] EWCA Civ 233 provides guidance on bringing judicial review proceedings at this stage of an FTPP hearing, rather than by way of a statutory appeal at their conclusion. A stay had been ordered in that case. The Claimant referred to the drawbacks of waiting for the prejudicial effect of a finding of serious misconduct to be overturned in a second set of proceedings, if the panel had erred in its appreciation of the prejudicial evidence and the need for an adjournment. At paragraph 44, Carnwath LJ said that he could see force in those points:

“There can be no inflexible rule. However I agree with Mr Englehart [for the GMC] that in general it is preferable for proceedings to be allowed to take their course and a challenge to their validity to be taken by way of appeal. Consideration must also be given to the difficulty of organising such proceedings in a complex case and the potential inconvenience to witness who may have had to make special arrangements to attend the hearing, and may be reluctant to repeat the experience.”

There is, in my judgment, a general principle but not an exclusive rule that proceedings to challenge decisions of a tribunal should await the conclusion of the hearing and should be made by way of statutory appeal. After all, judicial review is a remedy of last resort. A tribunal should not find its case management decisions, its interlocutory rulings and other procedural decisions challenged until the effect of any adverse decision of that sort is made manifest through the final decision. Proceedings of the sort here are potentially wasteful and very disruptive to the integrity of tribunal proceedings. They have the potential to put this court in the position of running the procedures of tribunals with no benefit to the integrity of the tribunal or of the reviewing or appellate judicial process.

It must be remembered that the tribunal has the benefit not just of specialist knowledge and experience, but has the advantage in most cases of knowing sufficient of the case and of the evidence to reach a rather more informed judgment than a judicial review court could. The tribunal is likely to be more familiar with the issues, how the case will evolve and the use to which it is likely to put material, and what safeguards it will employ. A judgment made at this stage of proceedings must recognise that the tribunal proceedings have yet to run their course, and unfairness in the outcome can still be remedied, even if in a less satisfactory manner. Unfairness may not be a necessary consequence of any procedural error made by the tribunal.

There may, however, be circumstances in which intervention at this stage is appropriate. The application was not so inappropriate here that it would have been right to refuse to hear it at the outset, because it relates to the admission of what is said to be evidence crucial to the GMC case, and to the particularisation of the allegations in a way which is said to be seriously misconceived and unfair. This will be a very long and complex case concerning allegations of misconduct by a consultant as an expert witness lasting 40, and possibly 80-90, days. Were there to be a major error by the FTPP those proceedings would have to be repeated. This would lead to a very large waste of time, money, resources of both sides, and significant prejudice to the registrant who would have serious adverse findings hanging over her for years. The case has been managed by the FTPP without disruption to the hearing timetable because this challenge has been allowed for within it. On balance, I have concluded that I should rule on the issues raised in this challenge. But there is this consequence of the timing of the challenge and the degree of knowledge and understanding of the procedure and the case which the FTPP had, but this court cannot. I am satisfied that before any relief is granted, I have to be clear that relief is necessary to avoid a clear and significant injustice, which would probably not be remedied during the process of the hearing and which would probably cause real harm, if not now remedied.

It was not at issue but that where the decision of a tribunal is challenged on the grounds that it was unfair, the test for the reviewing court is not whether that decision was a reasonable exercise of the tribunal’s discretion, albeit that it was unfair. The question is simply whether it was unfair, objectively judged, notwithstanding that the FTPP might reasonably have considered it to be fair. This was not in dispute. This is made clear in the GMC context in Mahfouz, above, by Carnwath LJ:

“19.

In my view, however, the only question for the court is the first. Where it is alleged that a lower tribunal has acted in breach of the rules of fairness or natural justice, the court is not confined to reviewing the reasoning of the tribunal on Wednesbury principles. It must make its own independent judgement:

“… the question whether we are entitled to intervene at all is not to be answered … by reference to Wednesbury principles … Rather the question has to be decided in accordance with the principles of fair procedure which have been developed over the years, and of which the courts are the author and sole judge…” (R v Panel on Takeovers and Mergers ex p Guinness plc [1991] QB 146, 184 per Lloyd LJ).

Furthermore the question whether there has been a breach of those principles is one of law, not fact (see e.g. Rose v Humbles [1972] 1 WLR 33).

20.

Accordingly although I will comment below on the discussion before the Committee, the decision of this court does not principally depend on how the matter was presented to the Tribunal or how they responded. What matters is whether they reached the right result.”

The extract cited from the Guinness case continues at p185 D:

“Of course the court will give great weight to the tribunal’s own view of what is fair and will not lightly decide that a tribunal has adopted a procedure which is unfair, especially so distinguished and experienced a tribunal as the panel. But in the last resort the court is the arbiter of what is fair.”

I add only that what is true for a distinguished and experienced tribunal is equally true for a specialist tribunal advised by a legal assessor.

The judgment of a reviewing court, as to whether a tribunal decision on the relevance of evidence for the purpose of its admissibility is lawful, may not require the court to adopt the same objective approach as it would to questions of fairness. The language of the Fitness to Practise Rules which focuses on the FTPP’s judgment as to relevance should be fully recognised. The rationality of the connection between a piece of evidence and the resolution of the issue to which it relates may permit greater scope for a tribunal view, differing from the court, to be respected and upheld. Certainly, that should be recognised at this stage of proceedings before the use made of the evidence is seen and its relevance tested with precision against the use made of it. The question, at this stage at least, in my view, is whether evidence is reasonably seen to be relevant; and at this stage the FTPP’s judgment is inevitably looking at the potential for evidence to be relevant, even if in its decision nothing is made of it and it falls into irrelevance. If it is capable of relevant use, the possibility that it may be put to irrelevant use should not lead to interference by a reviewing court at this stage.

Where a judgment is required as to whether the probative value of relevant evidence is outweighed by any unfairness which its admission might cause, the view of the judge trying the case, here the FTPP, a specialist tribunal hearing a disciplinary case, should be given great weight. It would need to be clearly wrong, and especially at this stage, the unfairness of that balancing judgment would need to be very obvious, however the case might develop.

The redacted judgments typically set out the background which led to the family and criminal proceedings. This includes the period running up to the death of the child, the immediate circumstances of the death, the factual evidence given about what happened, including that of the parents and of medical and paramedic staff involved around the time of death, and the post mortem results. The further context in which Dr Squier gave her evidence includes the description of medical issues, the evidence of the various experts in summary, and the judge’s conclusions on the issues as to cause of death. This includes findings of fact in relation to parents’ factual evidence. The specific rejection of Dr Squier’s evidence and specific criticisms of her evidence are redacted. But it is obvious from her evidence, which is summarised and supports the conclusion that death was accidental, that the finding that death was not accidental involved the rejection of her evidence. And the criticisms of her by experts or in submissions are included. The structure and style of judgment varies, and is inevitably rather different in the CACD. But the same information emerges.

Although the Fitness to Practise Rules are clear that evidence is admissible if the FTPP considers that it would be fair and relevant, whether or not admissible in a court of law, Sir Robert Francis’ submissions on behalf of the Claimant focused on the so-called rule in Hollington v Hewthorn Ltd [1943] KB 587. He contended that the redacted judgments were inadmissible and indeed were irrelevant. The GMC had to prove its case by calling factual evidence of what had happened, deploying the statements and transcripts of oral evidence of the factual witnesses, and the reports and transcripts of evidence of experts. Parts of the judgments might be agreed as factual summaries. But otherwise no part should be admitted. What the judges thought and how they recorded the evidence and submissions was irrelevant. It was for the FTPP to decide on the quality of the evidence given by Dr Squier, to which judicial views about the evidence of other experts in those earlier proceedings was irrelevant, as were summaries of the submissions of Counsel. It was irrelevant whether her evidence had been rejected, rightly or wrongly, since that was not the issue before the FTPP, which focussed on its professional and expert quality. The judgments were being used as shortcut to the proper proving of what needed to be proved, and for proving what was irrelevant in that it cut across the task allotted to the FTPP. It was not for Dr Squier, defending proceedings before the FTPP, to decide what parts of the judgments she would agree; rather it was for the GMC to say what it wanted to prove from what parts, and to see if that was agreed.

Sir Robert also submitted that the admission of the redacted judgments would be unfair because Dr Squier had not been a party to any of the proceedings, and had not been represented; the parties calling her did not have any necessary interest in protecting her interests, or dealing with criticisms of her, nor did they necessarily have the means or expertise to do so. She had no control over the presentation of facts. She was isolated, and the isolation of an expert was not confined to the stage when giving evidence in the witness box. Admitting the judgments in evidence would to shift the burden of proof, as they were to be used by the GMC as prima facie evidence of facts, which, if she disputed them, she would then have to rebut. The judges’ account of the facts and evidence given, and the individual findings of fact along the route to the conclusions, were inevitably skewed by the conclusions to which they knew they were to come, because it is the outcome which determined the relevance of what preceded it. There also remained individual comments, which the GMC intended to rely on as judicial warnings as to how Dr Squier had been giving evidence, though that was a more difficult point to make in view of the redactions.

Mr Kark submitted that the judgments were the basic tools for GMC to prove its case: the central purpose of admitting them was so that the FTPP would understand the background to each case, and would have therefore the context in which Dr Squier gave her evidence; it was necessary for the FTPP’s understanding how the issues in the cases arose, of the importance of her evidence, and of its capacity, if unprofessionally given, to mislead. It was relevant and fair to admit the redacted versions as prima facie evidence which, if it related to an aspect which she contested, would be rebuttable. As the case was about what happened before judges, the FTPP needed to know that, and could not assess the evidence in this case without the judgments as context. Whether Dr Squier’s evidence was misleading for example, or was sufficiently founded in the reports she relied on, required an understanding of the context of the issue to which her evidence related.

It is important, in my judgment, to recognise as the starting point that the Fitness to Practise Rule admits evidence which is not admissible in court, so an analysis of cases such as Hollington v Hewthorn does not help, save to the extent that it goes to the question of what is relevant and fair. I accept that the application of the Fitness to Practise Rules in GMC cases and other disciplinary cases with similar rules have led to an approach different from that which the application of Hollington v Hewthorn would require. There is no case in a GMC or other disciplinary context in which a judgment has been held to be legally irrelevant under rules similar to those applicable here.

The decision in GMC v Spackman [1943] AC 627, decided shortly after Hollington v Hewthorn is not consistent with it, but it is a decision at the highest level and specifically related to the GMC’s disciplinary procedures. The error of the GMC in Spackman was not that it admitted in evidence the finding in the Divorce Court that the registrant had committed adultery; its error was to decline to hear evidence which the registrant wished to call in rebuttal, while accepting the decree nisi as prima facie proof of adultery. Viscount Simon LC pointed out that the decision was not between the same parties, there was no estoppel or res judicata. The decision of the Court provided the GMC with strong prima facie evidence to prove the fact of adultery, but as the allegation was disputed, the GMC should have heard the rebuttal evidence and given it such weight as it thought fit. The GMC was entitled primarily to rely on the sworn evidence already given at the trial and the factual conclusion itself of the Divorce Court. It was not required to conduct itself as a court. The strength of his comments, in my judgment, must reflect the fact that the doctor was a party to the earlier proceedings and his adultery was central to both cases. Lord Atkin recognised that the GMC alone bore the statutory duty of making due inquiry and judging guilt. The GMC could not simply rely on inquiry or findings of fact or judgments of another tribunal in relation to a disputed allegation. But where there had been a trial “at least before a High Court judge” the notes of the evidence and the judgment of the judge might afford prima facie evidence in support of the charge. This is closer as I see it to the way in which the law in disciplinary tribunals has subsequently evolved.

In Constantinides v Law Society [2006] EWHC 725 Admin, the Solicitors’ Disciplinary Tribunal struck the claimant off because, in a Chancery Division trial in proceedings against him, he had been found to be dishonest. The decision of the Tribunal was said to be unfair because the Tribunal had read the judgment in that trial, and had treated it as admissible evidence of the fact of dishonesty. The SDT procedural rules were similar to the Fitness to Practise Rules of the GMC: they admitted evidence, inadmissible in a court of law. Part of the headnote reads:

“(1)

There could be no reasonable objection to the tribunal reading the judgment provided that it was clear and rigorous in its approach to that judgment. The judgment was admissible to prove background facts in the context of which C’s misconduct had to be considered. That however was the limit of its functions in the particular circumstances of the instant case. The judge’s views in the High Court action as to C’s dishonesty and lack of integrity were not admissible to prove the Law Society’s case against C in the disciplinary proceedings. In the instant case, the judge’s conclusions were far more wide ranging than the allegations made in the disciplinary proceedings. They were not relied upon by the Law Society as proof of dishonest and the tribunal direction itself that it was an expert and experienced tribunal that was bound to apply a different standard of proof to that of the judge. Further, it was plain that the tribunal disregarded the judgment when reaching its own conclusions, uninfluenced by the conclusions of another.”

The Court of Appeal recognised that the judgment was relevant for the background to the case, though questioning whether it was really necessary to prove what was uncontentious. It recognised that the findings of fact in an earlier judgment could be relevant evidence of dishonesty in disciplinary hearings; paragraph 28. Its concern however was that the findings of the judge went well beyond what was relevant for the tribunal in that case.

A not inconsistent approach was adopted by King J in Chaudhari v General Pharmaceutical Council [2011] EWHC 3433 (Admin), paragraph 71 in particular. The judgments in that case were strong prima facie evidence of relevant facts, but not conclusive evidence: the disciplinary tribunal was concerned with an appraisal of the registrant’s conduct and not the truth of the beliefs which had engendered the course of conduct which was the subject matter of the proceedings.

Constantinides was applied also in R (Hollis) v The Association of Chartered Certified Accountants [2014] EWHC 2572 (Admin) Sales J. The ACCA disciplinary regulations provided that findings of fact in a judgment were admissible as prima facie evidence. But there was a further rule which generally provided that evidence not admitted under that rule could be admitted under the general power to admit evidence which was not admissible in court. A licensed insolvency practitioner was subject to severe criticisms by a judge in a Chancery Division action; the judgment described the accountant as dishonest. The disciplinary committee admitted parts of the judgment under the specific rule relating to judgments. Sales J held that even if that evidence had not been admissible under the specific rule, it had been admissible under the general rule. However he took the view (paragraph 48) that the specific rule was akin to the decision in Spackman, in that the findings were prima facie evidence in the proceedings. He pointed out in paragraph 51 that prima facie evidence might upon examination be found to have no weight at all. The weight given to it rather depended upon the extent of argument heard, the extent of notice to the ACCA member involved and their opportunity to participate in the hearing. He also recognised at paragraph 54 that it was not difficult to imagine situations in which it might be unfair and unjust to admit judgments containing findings of fact, even though they were not irrelevant. Wide ranging and critical findings might be made about a person who was a witness but not a party to the proceedings, and in relation to whom hostile findings were peripheral to a later disciplinary charge. It might be very unfair to introduce such findings into evidence against them imposing a substantial burden responding to a mass of peripheral matters.

The importance of the FTTP being aware of the context in which evidence was given was emphasised in GMC v Meadow [2006] EWCA Civ 1390. The Court of Appeal was critical of the fact that the FTPP did not consider two Court of Appeal judgments which would have provided the context for the FTPP’s consideration of whether Professor Sir Roy Meadow had been guilty of misconduct. The role which the two earlier Court of Appeal judgments should have played was not confined to the second and third stages of the disciplinary process. It also went to the question of whether the expert’s errors amounted to misconduct. Auld LJ, paragraphs 205- 208 said:

“205.

Where the conduct of an expert alleged to amount to a professional offence under scrutiny by his professional disciplinary body arises out of evidence he has given to a court or other tribunal, it is, therefore, important that that body should fully understand, and assess his conduct in the forensic context in which it arose. Of great importance are the circumstances in which he came to give the evidence, the way in which he gave it, and the potential effect, if any, it had on the proceedings and their outcome. If the disciplinary body lacks information to enable it properly to assess the expert's conduct in that forensic context, or fails properly to take it into account, a court reviewing its determination, is likely to bring important insights of its own to the matter. Not least among those should be an appreciation of the isolation of an expert witness, however seasoned in that role, in the alien confines of the witness box in an adversarial contest over which the judge and the lawyers hold sway.

208.

It is in those respects that I believe the respective insights of the two Court of Appeal judgments would have been of help to the FPP. Unfortunately, as I have mentioned, it did not take or have the opportunity to consider them. In consequence, it appears, in my view, to have misunderstood or mistaken certain aspects of Professor Meadow's evidence and the circumstances in which he came to give it, and to have wrongly exaggerated the heinous effect, as it saw it, of what he said and its possible effect on the integrity and outcome of the trial.”

Thorpe LJ at paragraphs 268-269 under the heading of “serious professional misconduct” was clear that the failure to understand the full context in which Professor Meadow had given evidence meant that they never understood that his much criticised evidence ultimately went to a non-issue. Sir Anthony Clarke MR at paragraph 89 did not disagree with what Auld LJ said in paragraphs 205 and 207, but made the point that it was not relevant to take account of the actual outcome of the trial in deciding whether the professional expert was guilty of serious professional misconduct as opposed to deciding the question of penalty. I do not see this as an aspect of his judgment in which he was in the minority. He too emphasised the importance of assessing the conduct in the forensic context in which the allegations arose, the circumstances in which the expert came to give evidence, and of the potential effect of this evidence on the outcome of the trial.

In the light of those authorities, the FTPP did not act unreasonably in concluding that the judgments would be relevant in providing an insight into the background to the cases and the forensic context in which Dr Squier prepared and gave her evidence, and in providing prima facie evidence of facts about the circumstances of the deaths, the post-mortems, what the parents said, and the medical issues faced at trials to which Dr Squier’s evidence was relevant. The judgments are relevant to the scope of the medical issues and why particular factual bases were relevant for consideration, and to the potential effect on the outcome of the cases. They are relevant to show the nature of the issue about the cause of death. The gravity and nature of the issues may be relevant to the care and precision required in understanding what reports say and the importance of a full description of their limitations and nuances.

The FTPP did not decide that the judgments were to be admitted to prove the cause of death; that is not an issue for the FTPP. They are not relevant to prove that Dr Squier’s evidence was not accepted or was found to be lacking in certain qualities. The issue before the FTPP is not whether Dr Squier was right or wrong which was the issue before the judges, but concerns the basis upon which she gave her evidence, its scope and her use of the underlying research papers. That is the crucial issue for the FTPP. The actual outcome of the trials, and any finding in or inferred from the redacted judgments that Dr Squier’s evidence was rejected, is not relevant to these allegations of misconduct. The fact that the issues which were before the judges and the issues now before the FTPP are different does not mean that the judgments are irrelevant to the background to her giving evidence or to the forensic context in which the evidence was given, even if before the judge that context was highly contentious.

Although Sir Robert may be right that the events at the trial itself could be proved by reference to the written reports and transcripts of evidence, that does not make the judgments irrelevant and therefore inadmissible before the FTPP. The fact however that some of the background, including the circumstances of the death, might be difficult now to prove, and proving it would be time consuming and laborious is not irrelevant to the way in which the FTPP conducts its proceedings, and to its decision on admissibility, so long as it is aware that it is for it to make the findings on the issues before it, and, so long as it is prepared to receive evidence about facts which Dr Squier wishes to contest.

The modern expression of Hollington v Hewthorn is found in Hoyle v Rogers [2014] EWCA Civ 257 paragraph 39, in the judgment of Clarke LJ:

“As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it ("the trial judge"), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard.”

There is not so great a divide between Hoyle v Rogers and Spackman and the more recent disciplinary cases where the issues, parties and evidence are different. The present case however is not one in which a particular relevant issue was decided in proceedings to which the registrant was a represented party, as arose in Spackman. The crucial point about the role of the disciplinary tribunal is that it should be the decision maker on the issues and evidence before it; it should not adopt the decision of another body, even of several judges, as a substitute for reaching its own decision on the evidence before it, on the different issues before it. None of that precludes the GMC under its Fitness to Practice Rules considering the judgments in a case in which evidence later at issue before the GMC was given. But they are not relevant for the purposes of substituting one judgment for the other, because it is the FTPP’s statutory duty to decide the issues before it. The issues before it are not those which were before the courts, and the evidence and parties are also different. It may also be unfair for the judgments to be a significant influence on the mind of the tribunal on the crucial issues before it for those same reasons. Constantinides strikes an important note of warning.

But the purpose of admitting the judgments here is not to substitute one judgment, or several, for the judgment of the FTPP or even to treat those judgments as rebuttable prima facie evidence of the correctness of the allegations which the FTPP is to decide. The avowed basis for their admission may not go as far as perhaps it could have done in the authority of Spackman. To the extent that the judgments were taken as prima facie proof of any fact relied on, they would be rebuttable, and would have to be weighed against the evidence called by Dr Squier.

It is not unfair for the judgments to be admitted, for the same reasons. The FTPP must find for itself the facts necessary to reach a conclusion on the quality of the expert evidence given by Dr Squier in the light of the allegations as to its shortcomings, and the evidence before the FTPP. The FTPP should be very careful to avoid any actual or inferred findings of the judges on the quality of Dr Squier’s evidence being used as evidence of the truth of the allegations, because that risks substituting another body for its functions. And its task is not that of the judges in those cases; the issues crucially are different, as are the parties and the evidence which it will have to consider.

The balance struck by the FTPP between the probative value of the judgments and any prejudicial effect is reasonable. The material is potentially relevant and the judgments here are clearly not peripheral. Moreover the specific findings have been redacted so there is less of it available to require Dr Squier to devote time and energy to dealing with findings as opposed to focussing on the quality or otherwise of her evidence, to which the allegations relate. That has also reduced the prospect of the judgments being used for an irrelevant or unfair purpose. It is less likely, if not impossible, for the findings on the matters of importance for the FTPP’s own task to be resolved by the judgments. Although the fact that Dr Squier was not a party meant that she could not necessarily deal with criticisms in the court proceedings, and some were clearly put to her, she can deal with them before the FTPP.

The proof of whether the judgments are in reality irrelevant or used for an irrelevant purpose will be shown by the FTPP’s ultimate decision on the allegations. It is not for this court and not for a court now at this stage to anticipate that possibly irrelevant or unfair use might be made of the judgments, and to rule that the FTPP decision on admissibility is therefore wrong in law. The purpose for which its admission is sought is neither irrelevant nor to make unfair use of it. The opportunity for irrelevant or unfair use is markedly reduced by the redactions. Dr Squier still has the opportunity to say that any particular passage or finding of fact would be unfair and to seek to have it removed. That is an opportunity she has not yet taken up. It is by no means an inevitability or even the likely outcome of the admission of the evidence that irrelevant or unfair use would be made of it. But if it is, the decision will be appealable on that ground.

I do not accept the submission that the admission of the judgments would reverse the burden of proof. The judgments, as redacted, do not include findings on the allegations which it is for the FTPP to decide. They provide background, context and proof of what I would expect to be often non-contentious matters. The FTPP has to find the allegation proved by the GMC on the evidence that the scope and content of Dr Squier’s expert evidence was below the standard required of an expert; the allegations are not that the evidence was wrong, or rejected by the judges. Dr Squier can explain how she would have dealt with any aspects seen as critical in the judgments, but they are not the focus of the case and the redactions have essentially been sufficient to prevent that or at least to prevent it any significant degree. It is inevitable that the FTPP will know or infer, whatever happens, that her evidence was not accepted and that there were criticisms of its quality.

I do not accept the argument that the selection of facts in the background narrative of the judgments or the findings of fact are skewed by the conclusions to which the judgments come. There may be a focus on what matters for the judgments but equally there may be narrative and discussion on what matters, to explain how the issues arose for decision. There is sufficient original material available if shortcomings in the recordings of Dr Squier’s evidence are found in the judgments.

The present circumstances are a long way from Calyon v Michailaidis [2009] UKPC 34, even if relevant, in which a judgment of a Greek court on a case between two parties was held to be inadmissible as evidence of the ownership of the same disputed assets in a case in Gibraltar against a third party, and would have been inadmissible even if the first judgment had been that of a Court in Gibraltar: the later court had to receive its own evidence and then decide upon the facts for itself.

Part of Dr Squier’s concern about the admission of the judgments relates to the way in which the allegations are or are not particularised. I turn to that issue.

Although Dr Squier appeared initially to be challenging the adequacy of the particularisation of misconduct, in particular dishonesty, and that is how the FTPP may have understood the contention, it became clear that her real challenge was to the adequacy of the particulars of the earlier allegations. However, that challenge was made the more important because findings of fact in relation to those allegations would become the basis for findings in relation to allegations 4 and 5 (taking the first case as an example of the general style of charging). The two wrap up charges meant, submitted Sir Robert, that there was a greater need for particularisation of the earlier charges.

I regard it as tolerably clear that allegations 4 and 5 cover only what is alleged in 2 and 3, rather than some further as yet unspecified acts. Mr Kark confirmed as much, and the particularisation is therefore not inadequate. Were it to turn out otherwise, the degree of particularisation in allegations 4 and 5 would be hopelessly inadequate.

In the case of allegation 2 (a) and (b), I am not persuaded that the particulars are inadequate, beyond that in 2(b) it ought to be made clear whether “the evidence available” was factual evidence, and if so which, or the research reports, and if so which. At present that is wholly unclear. It may or may not be sufficiently clear from the Schedule of evidence but it is no great task to add that degree of particularisation. The allegation should be tied down to that extent so as to enable Dr Squier to know its focus. Allegation 2(c) is also sufficient save for the word “including”: the opinion which is relied on from the papers is stated; the research did not support it. It is not for the GMC to set out the content of the papers and explain what passages do not support the view in question. The contest was adequately joined in relation to the research papers identified. The Schedule of evidence is adequate to point Dr Squier in the direction of the passages in her evidence and in the reports, but that is not required for adequate particularisation of the allegation. The word “including” however gives far too large a scope to the GMC to add other reports at any stage of its choosing. The reports relied on should all be particularised or the word “including” should be dropped. The same point applied to the allegation in 2(d). These allegations are not fairly particularised for the purpose of the hearing in the way I have described.

Allegation 3 is hopelessly inadequately particularised. No fair trial is possible on this allegation without further particulars. These can be short and identify the omissions and inaccuracies which should have been avoided. It should not be difficult to state what the omissions and inaccuracies relied on are, in a schedule if need be. This is not a simple question of identifying evidence by page references; it requires the inaccuracies and omissions from the reports to be identified; the evidence can state why that was an omission.

Moreover neither the Schedule of evidence nor the draft opening remedy these deficiencies. There is often an overlap, which may be total, between the allegation and the evidence by which the allegation is proved. But they may not be the same either, and the focus of particularising an allegation is different from the focus of the evidence which supports it. I do not wish to be over prescriptive about how the GMC presents the charges, since the most important aspect is that Dr Squier should know what is alleged against her, so that she can prepare her defence. It may be legitimate to refer to a Schedule of evidence. But if I should disregard the heading put on the current Schedule by the GMC, in the light of the FTPP statement that that is not how it would regard the Schedule, I can still see why Dr Squier is disquieted by its persistent presence, still un-amended. I am also reluctant to endorse the notion that a draft opening can supply the deficiency in particulars: it is a draft and therefore can change; no certainty attaches to its content until delivered. It is not intended to be the full rehearsal of the case. Its use in that way is something of a throw-back to a practice in criminal cases which would not pass muster nowadays. I cannot see in principle why the necessary task of providing particulars should not be done in the list of allegations themselves, or, to avoid over-burdening them, in a Schedule of particulars. That is, in my view, what ought to be done but I cannot make it a requirement of FTPP procedure.

I have already referred to some of the deficiencies in the Schedule of evidence and in the draft opening as remedies for the want of particulars in the list of allegations. The lack of particularisation of allegation 3 is startling. A further problem with the draft opening is that it does not stick to the particulars. Therefore formal reliance on the opening muddies the particularised waters. If the opening is to be relied on as giving particulars, the formal particulars of the allegations currently alleged need to be changed. These failings are the inevitable consequence of using the opening as a substitute for proper particularisation.

I reject the contention that the decision on admissibility was unlawful. I accept that the allegations are in certain respects obviously inadequately particularised, and in allegation 3 so inadequately that no fair hearing can take place upon them. I have identified sufficiently, I hope, where these inadequacies arise and how they should be remedied. Although it was only the particulars in relation to this first case which were examined closely, these failings did not appear to be oversights. In essence the particulars of all the allegations should be examined again by the GMC for particularity in the light of what I have said.

I will receive submissions from Counsel as to what relief is appropriate.