“Rigid and concerning resistance” – Insight and review hearings

Dr Kevin Peter Newley v General Medical Council [2021] EWHC 1538 (Admin)

The judgment in a recent High Court appeal shines a spotlight on the need for registrants to acknowledge (although not necessarily accept) the findings made by a substantive regulatory Tribunal and to demonstrate the remedial steps taken to ensure the situation does not arise again.

Dr Newley appeared before the Medical Protection Tribunal Service facing clinical allegations concerning eight patients. His fitness to practise was found impaired and a nine month suspension order was imposed. Dr Newley unsuccessfully appealed against the tribunal’s decisions on impairment and sanction. A review hearing subsequently took place which resulted in an order of conditions being imposed. Dr Newley appealed against the decision of the review tribunal but, again, was unsuccessful. 

The first point of interest arises from the conclusions of the original tribunal. Defence representatives regularly advise practitioners as to how a tribunal is likely to view the way in which the practitioner wishes to present their case. Ultimately, of course, it is for the practitioner to decide how they wish to proceed.  The conclusions in this case, however, demonstrate the importance of a practitioner giving careful consideration to how they wish to come across  to the Tribunal and the outcome they are hoping to achieve.

The Tribunal concluded that Dr Newley demonstrated a “rigid and concerning resistance to the viewpoints, observations and evidence-based conclusions of others where they differed from his own” and that “this was emphasised by his decision to submit tangential and irrelevant material… as part of his mission to prove that his version of events should be preferred over every other view”. Dr Newley is also said to have “introduced new, speculative and subjective explanations”. The Tribunal further concluded that he was “rigid in his view about his own clinical practice”.

It not uncommon for practitioners subject to stressful and sometimes all-consuming regulatory proceedings to take such an approach. Professionals are often by nature perfectionists and to accept that errors have been made can sometimes prove too difficult.  In Dr Newley’s case, failing to take on board the views of the experts or to reflect on what could have been done differently, appears to have been a missed opportunity.

Dr Newley’s position at his review hearing and during his appeal was that he did not accept a number of the original findings. Mrs Justice Steyn was clear, however, that Dr Newley was not entitled to re-run his appeal against the original Tribunal’s decision under the guise of an appeal against the review Tribunal’s decision and stated that the attempt to do so was an abuse of process.

Dr Newley sought to argue during his appeal that the review Tribunal had been wrong not to correct the errors of the original tribunal. Mrs Justice Steyn stated that it is not the role of the review Tribunal to act as if it were an appellate Tribunal with powers to revisit findings.  

Steyn J relied upon the guidance given by Justice Yip in Yusuff v General Medical Council [2018] EWHC 13 (Admin) which states that during a review hearing:

  1. The findings of fact are not to be reopened;
  2. The registrant is entitled not to accept the findings of the Tribunal.
  3. In the alternative, the registrant is entitled to say that he accepts the findings in the sense that he does not seek to go behind them while still maintaining a denial of the conduct underpinning the findings;
  4. When considering whether fitness to practise remains impaired, it is relevant for the Tribunal to know whether or not the registrant now admits the misconduct;
  5. Admitting the misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it;
  6. If it is made apparent that the registrant does not accept the truth of the findings, questioning should not focus on the denials and the previous findings;
  7. A want of candour and/or continued dishonesty at the review hearing may be a relevant consideration in looking at impairment.

Dr Newley argued during his appeal that he was in a catch-22 situation. He did not accept a number of the original findings and that was not going to change. This argument was rejected. Steyn J noted that Dr Newley had provided little evidence of insight or remediation in  respect of the findings that he did accept and that his ability to show that he had kept his clinical skills and knowledge up to date should not have been affected by his view of the original findings. As conditions had been imposed by the review Tribunal, he was able to demonstrate remediation should he choose to do so.

With the guidance provided by Yusuff being applied and with a focus on demonstrating current fitness to practise, there should be no catch-22 for the registrant who does not accept the findings made against them. Yusuff makes it clear that what is important is being able to show that the registrant understands “the gravity of the offending” and that they are unlikely to repeat it. A registrant can therefore be clear as to their position regarding the original findings but also provide the review Tribunal with evidence of the remedial steps that they have taken since their original hearing, to update and refresh their knowledge / practice, and demonstrate insight regarding the seriousness of the issues raised.

Laura Smith, Associate, BLM

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