12-08-2013

Preedy v General Optical Council [2012] EWHC 1316 (Admin)

The registrant had been found guilty of a number of counts of fraud in the Crown Court and as a result a referral was made and allegations heard before fitness to practise panel. His fitness to practise was found impaired owing to such serious offences of dishonesty which included false NHS claims and forgery of signatures. There were a number of grounds of appeal brought under section 23 of the Optician’s Act 1989. They included errors by the panel as regards the extent of the monetary value of the fraud and the failure to grant an adjournment on the basis of medical issues. On the latter issue useful guidance can be found as to the approach to be adopted in professional disciplinary proceedings such as these. A useful extract from the judgment:

“Rule 21 of the General Optical Council Fitness to Practise Rules 2005 provides the Committee with a discretion to proceed with a hearing where the registrant, as he is described, is neither present nor represented if “having regard to any reasons for absence which have been provided by the registrant they are satisfied that it is in the public interest to proceed”. The rule was obviously not directly applicable because the Appellant was represented before the Committee on 12 April. Nonetheless, the parties made submissions concerning the question of an adjournment, accepting that the broad approach of the rules should apply, and also accepting that the Committee should apply the approach identified as being relevant to criminal proceedings in the case of R v Jones [2002] UKHL 5, [2003] 1 AC 1, [2002] 2 All ER 113. The Committee was referred not only to that decision in the House of Lords, but also to passages in the judgment of the Court of Appeal (to be found at [2001] EWCA Crim 168) which had been explicitly approved by their Lordships' House. Other authorities were referred to, including Tait v Royal College of Veterinary Surgeons [2003] UKPC 34, which was directly concerned with disciplinary proceedings.

In my judgment, it is abundantly clear that the Committee directed itself on the question of an adjournment by reference to the correct legal principles. The Appellant submits that, in the light of the material available to the Committee, it had in reality no discretion but was obliged to adjourn the hearing. I note that such a contention is contrary to the way in which the application was advanced by Mr Graham on behalf of the Appellant before the Committee. Correctly, in my view, he recognised that the Committee was tasked to make a discretionary decision, having regard to all of the factors identified in the authorities to which the Committee's attention was drawn.

I have set out the circumstances, touching upon the Appellant's medical condition, as they were described to the Committee. It is apparent, in my judgment, that there was no proper diagnosis, nor was there any real suggestion of when the Appellant might attend. Importantly, there was no explicit indication that the Appellant was unfit to attend, despite that very question having been asked in the email sent to Dr Toosey from which I have read.

Following consideration of those emails, and having listened to the legal advisor who correctly summarised the legal position, the Committee retired to consider the matter at 3pm. It is worth noting that the care with which the Committee approached this question of adjournment is reflected in the fact that they started the hearing at 9.40am and had adjourned in and out of both open and private hearings to enable Mr Graham to illuminate further the medical position. They returned after just short of 20 minutes and refused the adjournment.

In the reasons which the Committee gave, which came later, the chairman again referred to R v Jones. In concluding that there should be no adjournment, the Committee noted that the material from the doctor did not state that the Appellant was unfit to attend. The Committee balanced the interests of the Appellant with the interests of the witness, who had now attended twice, and questions of fairness to the Council. It also had regard to the public interest. In my judgment, there is no proper basis upon which this decision of the Committee, namely not to adjourn, can be impugned. In the circumstances faced by the Committee, it was entitled to reject the application for an adjournment.”