AC-LON-2023-002572 - [2025] EWHC 2324 (Admin)

The appellant applies to rely upon further medical evidence. By this evidence, she states in her Grounds (para 9):

“Dr Harper gave A the sick note on 13th July 2023 and A thought that Dr Harper did not want to put detail in there for reasons of confidentiality.

Either on 14th or 15th (A does not know which) she telephoned the GP surgery and explained to the receptionist that the NMC required more detail from Dr Harper. The receptionist stated that Dr Harper was not working that day.

On 18th July 2023 A visited her GP surgery and saw Dr. Minahil Rashid who provided her with a further sick note stating her condition as being ‘anaemia’. A says that Dr Rashid also gave her a prescription for oral thrush. C wanted to wait for Dr Harper to give more detail.

On 2nd August 2023 A spoke to Dr Harper and showed him the email from the NMC. A accepted this as she thought that this was the way that doctors worked.

Dr Harper did not provide this level of information but A was unable to find out why. A assumes that Dr Harper thought it was either confidential or that what he had provided was sufficient.”

There is no independent or confirmatory evidence about any of the exchanges that the appellant claims took place between her and Dr Andrew Harper. If there were further details that Dr Harper could provide, they have not been obtained by the appellant and provided to the court at any point in the subsequent two years. Furthermore, one must carefully examine the suggestion that once Dr Harper was told by the appellant that the court needed further information about whether her medical condition made her unfit to attend the disciplinary proceedings, he refused because he believed it was “confidential”. This is frankly implausible. A medical opinion about fitness to attend court, as explained and required by the Court of Appeal, is routine. There is nothing confidential about it if the appellant wishes to use her medical condition as the basis for an adjournment.

It should be noted that the appellant provided the sick note completed by Dr Rashid regarding anaemia. There has been every opportunity for the appellant to obtain evidence about the seriousness of the anaemia. The appellant has failed to obtain any explanatory or confirmatory evidence. When asked about the condition, she said that in fact the anaemia “resolved” by the next visit to the doctor in August 2023 and “I do not have it”. This is likely to provide some indication of its degree of seriousness.

In Adeogba, the Court of Appeal said at para 32:

“new evidence can properly be construed as evidence which was not available to the relevant panel at the time. That approach is not very different from the approach in Ladd v Marshall requiring that evidence could not have been obtained with reasonable diligence for use at the trial.”

The court continued at para 35:

“35.

Pulling these strands together, in my view, it is clear that evidence as to the reasons why, in any case, a medical practitioner does not appear or engage in a disciplinary hearing is likely to constitute fresh evidence and will require consideration, at least de bene esse. Thus, if a practitioner was taken ill or involved in an accident or had suffered some unforeseen and unforeseeable disaster, that fact would be very relevant to the exercise of discretion whether or not to adjourn and would not have been available at the hearing because, by definition, the practitioner would not have been able to be present to advance it. If there is a good reason for non-attendance, however, it would not necessarily extend to fresh evidence going to the merits of the disciplinary complaint which would have been available to be deployed at the time of the hearing."

I note that the Court of Appeal in Adeogba stated that further (medical) reasons will require consideration “at least” on a de bene esse basis. I have done so. Adopting the reasonable diligence test, I can see no reason why the telephone call (unevidenced) to the surgery on 14 or 15 July could not have been evidenced at the hearing. It is claimed that Dr Harper was not working on the day the appellant called. There is no suggestion that she asked for him to call her back or for her query to be brought to his attention. There is nothing to suggest that the appellant tried to contact Dr Harper again on the subsequent days before the hearing started. When she addressed this court, she claimed that the reason for the Dr Harper not stating that she was unfit for court is that he was “adamant” that would not “divulge” that detail despite her telling him that the court wished to know whether she was unfit to attend the hearing. I find this highly improbable. I cannot understand how any reasonably competent medical practitioner when filling out a sick note would not provide an opinion when asked whether the diagnosed condition rendered the patient unfit to attend court. This is something that medical professionals do routinely every day up and down the country. The obvious explanation is that Dr Harper simply and diligently did as he was asked by the appellant and filled out a pro-forma stating that she was unfit for work because she was “unwell”. It is noticeable that the appellant has not sought to provide the court subsequently with any evidence from Dr Harper setting out such an idiosyncratic approach to patient diagnosis.

As to anaemia, the condition resolved itself by the next doctor’s appointment the next month in 2023. The appellant confirmed to this court that she did not ask Dr Rashid if she was unfit to attend court due to the anaemia, and Dr Rashid has made no such finding. By the time the appellant saw Dr Rashid on 13 July 2023, she knew that the disciplinary hearing was imminent, due to start on 17 July. Yet she told this court that because the hearing had not started, she did not ask Dr Rashid whether the anaemia made her unfit for the hearing. This lacks credibility. The question of her fitness to attend the hearing was of prime importance. She had written to the respondent on 8 July 2023 seeking an adjournment as she was unfit due to her oral thrush. On 10 July, the respondent requested details of the appellant’s medical condition. The appellant saw Dr Rashid three days later. It is improbable that the question of her fitness to attend the substantive hearing four days after that was not at the forefront of her mind. The more likely explanation is that the anaemia, that would resolve shortly after that appointment, was not particularly serious and did not render her unfit to attend the disciplinary hearing, whether on its own or in conjunction with the oral thrush.

Overall, the fresh evidence adds very little of substance. I judge that even if it were properly admissible, which I doubt, it does not render the Panel’s adjournment decision wrong by itself or in combination with Dr Harper’s pro-forma sick note.