AC-2025-MAN-000198 - [2025] EWHC 3017 (Admin)

The submissions as to systemic unconscious bias, lack of independence, and conflict of interest all arise from arrangements that have been in place since 2015: see the GMC (Constitution of Panels, Tribunals and Investigation Committee) Rules 2015. The practical effect of these Rules is that a tribunal will comprise a legally qualified chairman/chairwoman together with a medical member and a lay member.

The first submission is that the existence of the legally qualified chairman/chairwoman as opposed to a system where tribunals are advised by a legal advisor gives rise to a conflict of interest and duty. There is no such conflict. The submission rests on a misunderstanding of the function of a legally qualified chairman/chairwoman which is, in addition to playing a full part in the merits determination of a case, also to provide the panel with a source of legal expertise. Such a role is entirely commonplace and of itself gives rise to no conflict of interest. There is nothing wrong with such arrangements in principle and, in this case, there is nothing to suggest that these arrangements gave rise to any difficulty or error.

The contention that an appearance of bias arises from the presence on a tribunal of a medically qualified member is also incorrect. Again, it is commonplace for regulatory disciplinary tribunals such as this one to have such persons within their membership. I do not accept that the presence on a tribunal of a member of the profession concerned, in this case a doctor, is capable per se of giving rise to any appearance of bias or predetermination. Whether the matter is considered at the level of the system or by how the system operated in this case, the standard to apply is that of the informed and fair-minded observer. Applying that standard, it cannot be said that the presence of a medically qualified person as a member of this Tribunal gave rise to any appearance of bias.

The final part of this ground is that the Tribunal displayed bias or predetermination (or at least would have been seen to do so by an informed and fair-minded observer) by failing to pay proper regard to Dr Kumar’s reasons for not attending the resumed hearing on 1 April 2025.

At paragraph 36 of its decision the Tribunal said this:

“36.

Having previously been present at the impairment stage of this review hearing and being made aware of the reconvened hearing date, Dr Kumar chose to voluntarily absent himself from the sanction stage of the hearing. The Tribunal confirmed that Dr Kumar had been provided with notice of the hearing and the hearing link and had sent an email at 1am this morning to state that he would not be attending today.

Prior to the resumed hearing on 1 April 2025 Dr Kumar had provided a statement that contained a mix of evidence and submission on the issue of sanction. There is then, no room for doubt that Dr Kumar knew of the hearing; knew of the matters to be considered at the hearing; and took the opportunity to address those matters. It is apparent from the Tribunal’s reasoning that it took the contents of this statement into account and gave them careful consideration. At paragraph 20 of the statement Dr Kumar had said this as to his reasons for non-attendance at the resumed hearing.

“20.

I would have loved to appear in person at the sanction stage of this hearing, however, given my distressing experience of the hostile and demeaning conduct of the GMC counsel, further compounded by the Tribunal Chair’s permissiveness and condonation of such conduct, despite my objections, I am left with no other choice, than to recuse my attendance at this Review Hearing of 01 April 2025, in order to preserve my psychological safety, sanity and wellbeing, out of my palpable fear of being attacked, humiliated and demeaned again by the GMC counsel. My fear and apprehensions stand further aggravated by the Tribunal chair’s permissiveness and condonation of GMC counsel’s previous hostile, disrespectful and demeaning conduct.”

I have seen a transcript of the hearing on 28 February 2025. In the course of his submissions to me, Dr Kumar said that at one point during that hearing counsel for the GMC was seen to shake her head when he was speaking; that at the beginning of the hearing counsel for the GMC incorrectly referred to him as “Mr Kumar” an error that was (after not too long) corrected but only after Dr Kumar had mentioned the matter; and also that at one point during the hearing the chairman said to Dr Kumar that he was being repetitive. Although I accept that a transcript of a hearing will not always provide the full flavour of what happened, having considered the transcript carefully I am entirely satisfied that there is no reasonable basis for the assertion in Dr Kumar’s witness statement that he was subjected to “hostile and demeaning conduct”. To my mind, none of the matters relied on is either exceptional or even particularly noteworthy.

For present purposes the issue is whether the Tribunal was entitled to proceed in Dr Kumar’s absence on 1 April 2025 for the reasons that it gave at paragraph 36 of its decision. By Rule 31 of the Fitness to Practise Rules a tribunal may proceed in the absence of a practitioner if it is satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing as required by the Rules. In the present case there was no doubt that Dr Kumar did have notice of the resumed hearing on 1 April 205. It is also apparent from the Tribunal’s reasons that before deciding to proceed in Dr Kumar’s absence the Tribunal had satisfied itself that his failure to attend the resumed hearing was voluntary. In reaching that conclusion I do not doubt the Tribunal carefully considered the matters set out by Dr Kumar in paragraph 20 of his statement. Considering the position in the round, I am satisfied that the Tribunal was right to conclude that Dr Kumar’s decision not to attend the resumed hearing on 1 April 2025 was a voluntary decision, not a decision that had been taken under any form of duress arising from the way the hearing on 28 February 2025 had been conducted. The decision to proceed did not therefore give rise to any error on the part of the Tribunal.

One further point made by Dr Kumar is that the Tribunal’s decision to proceed in his absence on 1 April 2025 is itself a matter from which it can be inferred that the Tribunal had already decided that he should be erased from the Register. I do not accept this submission. First, for the reasons already given the Tribunal was entitled to proceed in Dr Kumar’s absence. Second, it is apparent from the Tribunal’s reasons that, in any event, it paid careful regard to the evidence and representations that Dr Kumar had made on the sanction issue and took those matters properly into account. Further, the Tribunal’s reasons for the sanction decision are clear and demonstrate a careful, principled and balanced consideration of the evidence and of the relevant professional standards in the Guidance.

Drawing these matters together there is no basis for any inference of apparent let alone actual predetermination of the decision on sanction. Any fair-minded and informed observer would not conclude that there was any possibility either of bias or of predetermination on the part of the Tribunal.