Medical Practitioners Tribunal Service

Medical Practitioners Tribunal (Misconduct)

On:

Monday 7 November 2016

Held at: St James’s Buildings

79 Oxford Street Manchester M1 6FQ

Case of:

DR FINELLA MARIE CHRYSTALENE BRITO-BABAPULLE MRCS 1978 Royal College of Surgeons of England

Reference No: 2456641 (Day One)

Tribunal Members:

Dr Janet Nicholls (Chair)

Mr Geoff Brighton Ms Liz Daughters

Ms Julia Oakford (Legal Assessor)

IN PUBLIC

MS NABILA MALLICK, Counsel, instructed by Kingsley Napley, appeared on behalf of Dr Brito-Babapulle, who was present MR PAUL WAKERLEY, Counsel, instructed by GMC Legal, appeared on behalf of the General Medical Council

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Transcript of the digital recording Transcribed by T. A. Reed & Co Ltd

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INDEX

Page

PRELIMINARY REMARKS 1 APPLICATION for time by MR WAKERLEY 1 APPLICATION for time by MS MALLICK 2 APPLICATION to postpone hearing by MS MALLICK 3 RESPONSE by MR WAKERLEY 11 RESPONSE by MS MALLICK 18 RESPONSE by MR WAKERLEY 22 LEGAL ASSESSOR’S ADVICE 23 DECISION 25 APPLICATION for time by MR WAKERLEY 26 MATTERS OF CLARIFICATION 27 APPLICATION by MS MALLICK 30 RESPONSE by MR WAKERLEY 31 RESPONSE by MS MALLICK 32 RESPONSE by MR WAKERLEY 32 RESPONSE by MS MALLICK 33 LEGAL ASSESSOR’S ADVICE 33 DECISION 33

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THE CHAIR: Good morning, everybody. I am aware there are certain matters but we will get started. This is a Medical Practitioners Tribunal, operating under the General Medical Council (Fitness to Practise) Rules 2004. The Tribunal has convened to consider the case of Dr Finella Brito-Babapulle. My name is Dr Janet Nicholls and I am the medical Chair of this Tribunal. The other two Tribunal members are Ms Liz Daughters and Mr Geoff Brighton. They are both lay Tribunal members. Dr Finella Brito-Babapulle is currently not present and not represented. Mr Paul Wakerley, Counsel, instructed by GMC Legal, represents the General Medical Council. The Legal Assessor is Ms Julia Oakford. The Tribunal Clerk is Ms Erin Brass assisted by Mr Matthew Leonard. Mr Wakerley, are there any preliminary matters? MR WAKERLEY: Yes, thank you. I think the first matter that we need to grasp is the obvious current absence of the registrant and any representative that she may have instructed. I think it would be fair to say that we are taken by surprise by their complete absence this morning and so are seeking to make contact with the doctor. This is a case in which we anticipated this morning this Tribunal would be faced with an application to postpone the hearing following earlier similar application made to the Case Manager in the course of the last two weeks, each of which was refused. There has been a good deal of correspondence between the registrant doctor and the General Medical Council who are responsible for the preparation of the case, all of which suggested that there would be attendance. Indeed, the email over the course of this weekend included within it reference to the fact that the doctor would be present with a representative who was appearing on a pro bono basis. There had been previous email correspondence in which the doctor suggested that she was unavailable until a little later this week but again the latest correspondence was that she intended to be here. At the moment whilst, of course, we understand your anxiety to progress matters it seems to us that we should see if we can establish contact with the doctor to find out if there has been some sort of problem or other issues which has caused her to not arrive on time this morning before we make any other applications, which would normally flow from the absence of a registrant. I think, at the moment my application is for you to allow her some time to allow us to try to contact her to see if there is an issue. Whilst we are doing that I will take instructions as to what my next application would be subject to the time that you allow. My suggestion would be, if it meets with your approval, that we perhaps give her 30 minutes in the first instance. THE CHAIR: Yes, I think that is reasonable given the circumstances and the lack of any up-to-date information. I think 30 minutes would be very reasonable. The Tribunal is adjourned for that time. MR WAKERLEY: Certainly, if we hear anything before that time we will pass word through by whichever means we can.

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THE CHAIR: Thank you very much. The Tribunal is adjourned.

(The Tribunal adjourned for a short time) THE CHAIR: Good morning, Ms Mallick. Mr Wakerley, I understand there has been a change in the circumstances. If you could update us? MR WAKERLEY: Yes. Just after we rose, in fairness to my learned friend, we managed to locate my learned friend, who had gone to a different building originally, understandably. There is no criticism directed at her whatsoever. I have had an opportunity to discuss matters with her briefly but I understand she has an application to make. As I understand it, the doctor is not yet here although perhaps I should give way to my learned friend and she can address you as to why and where? THE CHAIR: Thank you. Ms Mallick? MS MALLICK: Good morning. I represent Dr Brito-Babapulle. I have been instructed for the purposes of making an application before the Tribunal. Dr Brito-Babapulle spoke to me this morning at half-past six when she was on her way to Manchester. I have travelled by train and she has come by car. I understand from Dr Brito-Babapulle that she has done the journey before and she was confident that she could get here in time for the hearing. What has happened is that she has been stuck on the motorway, which is not uncommon for people travelling by car from London. She informs me that she is now in Macclesfield but she estimates, according to the GSM time of arrival, that she will be arriving at this building at 10.37. It is not long now and I would ask the Tribunal if they would wait for her before we commence with the hearing. I make my application because I think it is important for her to be present to hear what I have to say on her behalf. THE CHAIR: Ms Mallick, thank you. It does seem very reasonable, given the circumstances, that we know that she is on her way and has, obviously, made attempts to get here. I have already officially opened although I was prepared to do that again in the light of there now being the doctor present. It does seem reasonable, as it is quite a short period of time, to wait until the doctor is here. It would seem a little inappropriate to re-open and then have the doctor come in after that. If you feel that that is her time of arrival, let us say we will adjourn until quarter-to eleven and then let us know at that time if she is here and that you are prepared to start at that time. MS MALLICK: Thank you very much. THE CHAIR: Thank you. The Tribunal is adjourned.

(The Tribunal adjourned for a short time)

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THE CHAIR: Good morning. I had previously opened the case but in view of the circumstances I will read the initial matters out again, particularly for you, Dr Brito-Babapulle. This is a Medical Practitioners Tribunal, operating under the General Medical Council (Fitness to Practise) Rules 2004. The Tribunal has convened to consider the case of Dr Finella Brito-Babapulle. My name is Dr Janet Nicholls and I am the medical Chair of this Tribunal. The other two Tribunal members are Ms Liz Daughters, to my left, and Mr Geoff Brighton, to my right. They are both lay Tribunal members. Dr Finella Brito-Babapulle is present and is represented by Ms Nabila Mallick. Mr Paul Wakerley, Counsel, instructed by GMC Legal, represents the General Medical Council. The Legal Assessor is Ms Julia Oakford. The Tribunal Clerk is Ms Erin Brass assisted by Mr Matthew Leonard. Mr Wakerley, are there any preliminary matters for the Tribunal to deal with? MR WAKERLEY: Madam, yes. The preliminary matter that the Tribunal must deal with is an application that my learned friend wishes to make, on instructions, to postpone today’s hearing. I think it would be right for me to give way for her to make that application and then I would respond to it, in accordance to the terms in which it is made. THE CHAIR: Yes, thank you very much. Ms Mallick, the Tribunal has a document in front of us that I understand is the background to the application? MS MALLICK: Yes. THE CHAIR: If you would like us to receive that, we will receive that as D1? MS MALLICK: Thank you very much. THE CHAIR: We are now with you. MS MALLICK: Thank you. Before I commence could I also provide to the Tribunal a batch of references that I wish to support the application for postponement? (Same handed to the Tribunal). THE CHAIR: Thank you. That will be D2. THE LEGAL ASSESSOR: Ma’am, you will receive them as part of the application for adjournment. If you do proceed with this case you will need to put these out of your mind other than being relevant to any stage of the proceedings because normally, as you are aware, testimonial evidence is not adduced until later in the proceedings. THE CHAIR: Thank you.

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MS MALLICK: The application is for a postponement of today’s hearing. The doctor is aware that the matter has been scheduled for a 20 day hearing plus before the MPT. However, the application is made primarily because she believes, and it is put forward on her behalf, that she will not receive a fair hearing if this matter were not postponed today. The doctor has throughout complied with directions that have been put forward. She was previously represented by Hempsons Solicitors, who were funded by the MDU. As a consequence of the MDU making a decision to withdraw funding, unfortunately, Hempsons Solicitors no longer act for the doctor, which also meant that she was unable to continue with her previous Counsel, Ms Linda Goldman. That resulted in the doctor having to instruct Counsel as quickly as she could. As Counsel, I know Dr Brito-Babapulle from other areas. I also represent her in an employment matter. She had made all the steps that she could to find Counsel and then, unfortunately, having the professional relationship that she was fortunately able to instruct me. I have been instructed as far as the postponement application is concerned in order to make the application before the GMC. I have been instructed because the doctor does not have the funds to fund a 20 day hearing herself. Nor is the doctor able to obtain – and she has approached the MDU funding. I understand at the moment there is a further consideration as to whether the MDU should allow back funding and that has gone to the committee. The reason I have addressed the issue of MDU funding is because there is the issue of whether she herself had made the choice not to have her previous legal team. We wish to make clear that that assertion is incorrect. It was not her choice not to have her previous legal team. She was perfectly happy with Counsel, Linda Goldman, who had previously represented her. The position that the doctor finds herself in is that she does not have the funding that she previously had. She does not have the legal team that she previously had. She has had to instruct Counsel, myself, to appear before the Tribunal on short notice. Then, and rather importantly, is her position regarding a medical expert. The doctor had looked at the allegations very carefully and expected that the appropriate experts would have been instructed, not only on behalf of the GMC but also on behalf of herself. The doctor is a Consultant Haematologist with over 30 years NHS experience, not a general Consultant Haematologist, she has considerable experience of lymphoma patients and myeloid patients. The expert that the GMC wish to rely upon, on the basis of her own published work in her resumé – I do not believe that would be disputed – is one that indicates that she is not a lymphoma expert. None of the papers indicate that. Her expertise really lies in myeloid. Similarly, because Hempsons did not have the understanding of what was required in locating an appropriate expert, they had failed to obtain a specialist lymphoma expert.

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The doctor has made her own enquiries and, unfortunately, because she was only notified about Hempsons’ ability to source the appropriate expert recently, she then took steps to find somebody with the appropriate expertise herself. She could no longer rely on her legal team to do so. She has contacted Dr Linch. Dr Linch is the Chair of the Lymphoma Committee. She does not rely on any other expertise other than somebody who is regarded as an expert by the community of Haematologists. Bearing in mind that when independent experts give evidence there is the MPT protocol that those experts should really be experts in their field, the doctor’s expectation that you should hear such expert evidence is reasonable. I put forward the submission on her behalf that when she seeks to have expert evidence she does so in order to assist the Tribunal to come to a properly formed decision on hearing appropriate expert evidence. Dr Linch has indicated his availability. It is incorrect to suggest that he may or may not be available presently and it is indeterminable when he will be available because the doctor has ascertained that he is able and available to write the report in January. The reason why he is currently unavailable is because of his working commitments and the vacation period that he is taking with his family. That being the case, that he is able to prepare a report in January 2017, the period for which the doctor seeks an adjournment, is within the period of time which she is on condition of practice by reason of the interim order placed upon her. I believe that that continues until 17 February. The basis upon which she seeks an adjournment is not having legal representation and not having an expert to deal with the allegations that she faces. There is also a third reason and a rather important reason. The GMC’s disclosure, at present, is partial. We say it is partial because in relation to at least the histology allegation. The appropriate witness has not been spoken to and nor provided witness evidence. It was envisaged, and it was indeed recognised at the telephone conference, that the GMC’s disclosure was partial and particularly in relation to the allegation regarding histology and practice and procedure and what actually happened in relation to that allegation where the registrant had asked histology to assist her with a private patient. There is a serious allegation that underlines the partial disclosure that has been made by the GMC. Therefore, the third basis upon which the doctor seeks a postponement is on the basis that the GMC bring an allegation against her - serious allegations - and yet they are, in part, supported by disclosure. Indeed, the GMC’s own view at the telephone conference was that disclosure was partial and that they would have to review whether matters should proceed. It is the doctor’s position that the GMC themselves, knowing that partial disclosure had been given to the doctor, they should have reviewed the position and decided for

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themselves that this matter should have been postponed rather than opposing the application by the doctor. Fourthly, this is a case that involves a number of witnesses. It is suggested by the Case Manager that doctors come before the Tribunal and they often represent themselves. I put forward the submission that you should look at each circumstance individually and consider the allegations. I ask you to consider that here there are some 16 allegations and the allegations relate to a number of patients. They are complicated because they involved pharmacology care. That being the case the cross-examination of those witnesses will be complicated. The doctor does not have the training nor the skills to cross-examine witnesses. In any case, she has chosen to have legal representation. She does not choose to be without legal representation. The fact that other doctors have come before the MPT and represented themselves is neither here nor there. It is a choice that is open to her to exercise, she has the right to exercise that choice and she should be allowed to exercise that choice. Currently she is not able to because of the position she finds herself in. Also, you should consider the vulnerability of some of the witnesses that have been called by the GMC. One witness is a patient who the doctor cared for not only at a time as a locum at the Isle of Wight but also as a private patient. It is important to consider that whilst that patient could not continue, as she says in her witness statement, with private care because she was inhibited by costs and that care was not available at the Isle of Wight, it is important to consider that there are parts of her evidence that the doctor will have to challenge and the doctor feels very uncomfortable about challenging a patient who she had cared for. She is also concerned about the vulnerability of this patient bearing in mind the reasons why she became a patient of the doctor. Interestingly, that particular patient has said that she believes that certain GMC witnesses have it in for the doctor and that all the doctor wanted to do was to do her best and to take care of the patient. Nevertheless, there are parts of her account that the doctor will wish to challenge. Then, there is the complexity of challenging the expert evidence. When she is having to challenge that expert evidence what the Tribunal will be hearing will be personal testimony. The difficulty in her cross-examining that expert and then having to provide her closing on that expert evidence is that the Tribunal will be bound to think that her approach was biased by her own belief in what she did was right and that her own opinion was not independent. For those reasons I put forward, and I have done so in a very detailed submission, that there are good grounds for a postponement of this case. I would urge the Tribunal to give serious consideration. As far as departing from the Case Manager’s decision is concerned, you have a discretion to make a decision of your own volition. Whilst you will have sight of

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the Case Manager’s decision, I ask you to consider that there are a number of points that you can consider that the Case Manager was not able to. One of those points was the fact that I highlighted, the difficulty that will ensue from having to cross-examine witnesses by the doctor. The other matter is the partial disclosure that has not been considered previously because we had not, at that stage, got to preparation of the case for the purposes of the hearing. There is also the fact that you have heard submissions in greater detail than the Case Manager had before her, particularly in respect to the expert evidence. One of the points that is put forward by the Case Manager is that there is going to be delay and it is not in the public interest because of the risk to the public from the doctor. What I put forward in submission is that you have, provided by me today, this morning, a number of references that I have given to you, marked D2. Those references are recent references. The first is an anonymous reference and it details the doctor’s standard of practice. Under general performance of the named applicant it ticks “Very good” to “Excellent”. When it comes to reliability, the doctor is considered to be excellent. When it comes to clinical skills she is considered to be very good. When it comes to patient records and communication and other relevant matters, relationships with patients, she is considered to be very good. What she has demonstrated to her peers is that she is indeed a capable Consultant Haematologist. We see at page 2 of that first document – or internal page 5 – under “Please provide any further information which is relevant to above named applicant’s application to be supplied as a locum…” It says:

“Dr Brito-Babapulle is an experienced and knowledgeable Consultant Haematologist with a keenness and kindness to patients that is a joy to work alongside. I wish she could stay much longer.”

That is the feedback that you get from that hospital. The next document – I am sorry it is not paginated – is from the Ipswich hospital and that comes at the end of the TXM Healthcare document. You will see again, under, “How good was your doctor today at each of the following?” This is a patient feedback sheet provided in October 2015. You will see again that she is assessed at “Good”, “Very good”. Then, going further to the document dated October 2016, it is an email from Dr Stirling. It is the first typed document you see. It is not in form form, it is in letter form. This is an email that was sent to the GMC on behalf of the doctor and it is from Carol Stirling, who is a Consultant Haematologist at the Royal Alexandra Hospital in Paisley, outside Glasgow. She says that she had worked with Dr Brito-Babapulle in 2015 when she worked as a locum Haematology Consultant. She says that she worked in close contact with her during the weekly haematology clinic and the haematology day ward as well as in the

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laboratory. That is important because of the allegations that relate to pharmacology, her diagnosis of certain medication. She says:

“I am aware of allegations against Dr Brito-Babapulle and that she is due to attend a MPTS hearing. Dr Brito-Babapulle proved herself to be a very competent Consultant Haematologist. She worked hard and was very caring towards patients. I found her to be a very open, warm and trusting individual and patients found her easy to confide in. She always has the patients’ interests and well-being foremost and acted accordingly.”

The importance of this reference is that this is a doctor who is a Consultant Haematologist herself. She had the privileged position of working with the doctor and worked with her alongside as a locum in patient care. She also knew what the allegations were. She says that she was aware of the MPTS hearing and she knew of the allegations. The importance of that is that when a doctor provides a reference, knowing what allegations the doctor faces, she would have to give serious consideration to her duty to the MPT and the contents of what she was writing. For that reason I say that one can give considerable weight to that reference. Then, there is another reference, dated 20 October 2016, from Dr Chalmers, who is a Consultant Haematologist. Here again he has worked with her. In the second paragraph he points to the fact that:

“She showed competence in bone marrow reporting and clinical diagnosis as well as treatment of patients. There were no issues with regard to probity.

She worked well within the team, including consultant secretaries, nurses and laboratory staff.”

That is particularly important because of what the Isle of Wight put forward in relation to allegations in 2013. It is my submission that this reference shows clearly not only a change in attitude by the doctor but clearly in 2015 she did not pose a risk. She had remedied whatever circumstance she had found herself in at that time. More importantly, there is independent evidence from a Consultant Haematologist that supports her ability to continue to work and the fact that not only are patients not at risk but they, in fact, had the benefit of treatment from a Consultant Haematologist regarded to be very competent. Then, there is the further doctor’s reference at the page that follows, dated 31 October 2016. Again, this doctor says that he has worked with the doctor since 2013 and he has worked with her in 2016 as a locum Consultant. He says

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that he has worked with her in a clinical capacity and in the laboratory reviewing morphological diagnoses.

“I am aware of allegations against Dr Brito-Babapulle and that she is due to attend a MPTS. While at Poole I found Dr Brito-Babapulle to be a competent Consultant Haematologist. She was well regarded by her Consultant colleagues.”

Then the next page – and it is one of the last two references – again is a further supporting letter from Dr Raphael Ezekwesili. He is a Consultant Haematologist and Head of the Department of Haematology and Trust Lead for Pathology at Darent Valley Hospital, Dartford. I ask you to consider his position and the fact that he says:

“I was Dr Brito-Babapulle’s Senior Registrar during the period when I worked at the Royal Berkshire and Battles NHS Trust between 1996 and 1998.”

He then goes on and says:

“I have been working as a Consultant Haematologist at Darent Valley Hospital since July 2004 to date. Dr Brito-Babapulle has been working as a locum Consultant Haematologist in our Trust during the past few weeks…”

Then he goes on:

“I have worked with her both in a clinical capacity and in laboratory reviewing morphological diagnoses, in my previous role as a Senior Registrar and now as a colleague Consultant Haematologist. I have found Dr Brito-Babapulle to be a competent Consultant Haematologist, who was always forward thinking and working towards giving her patients the best possible treatment available to them. She always showed evidence of keeping up-to-date with advances in haemato-oncology practice. During her brief time with us at Darent Valley Hospital I have heard very good comments from staff about her competence and her treatment of patients seen by her.”

Again, this is somebody who knew of the allegations that this doctor faced and knew the upcoming MPT proceedings. If I could ask you to turn that page over but again turn it over to look at the other side. It is a letter provided on 30 August 2013. The reason why that is important is that you have allegations relating to her time as a locum between August and October 2013. In that second paragraph, three lines in, it says:

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“In my opinion she is a first rate haematologist.”

Even before the facts that underlie the allegations arose, this is somebody who is considered to be a first rate haematologist. More recently we have those who can provide support of the standard of her clinical practice and her competency as a doctor, her honesty but also her relationship with the patients, which are the focus of some of the allegations that have been put forward. Also, we have some support as to the type of doctor that she was. She is a forward thinking doctor relevant to the allegations that arise in relation to her diagnosis and the allegations that relate to pharmacology. That being the case, I put forward a strong response to the Case Manager’s assertion that the reason why these proceedings should not be delayed any further is because of the potential risk to the public. I put forward the submission that no better evidence could be before you than the people who have worked with this Consultant Haematologist, that testify in statement, knowing their duty to the MPT, and doctors whose credibility I put forward as Consultant Haematologists should not be challenged easily and there is no basis to, particularly in relation to the doctors that you have references from. These doctors provide an account of a competent doctor who understands how she should conduct herself to patients and who is honest in her practice as a doctor. I put forward that she does not present a risk to the public. Also, there is a point put forward by the Case Manager as to whether this doctor’s conduct was such that the public confidence in the profession would in some way be undermined. I put forward the submission that the public confidence in this doctor continuing to practise as a doctor is no better said than by Patient E, who has given evidence on behalf of the GMC, who believed that this doctor was trying her best for her. I put forward the submission, again when you are considering whether to postpone this hearing, you should consider really even for the purposes of this hearing, the one patient that they have evidence from, that patient believes that this is a doctor who does her best. The public perception so far is, at least from the patient they call evidence from, that this is a doctor who does her best. I put forward the submission that the public’s perception would be far more undermined in the profession if it were the case that these proceedings could continue without the doctor having a fair opportunity to provide relevant expert evidence before you. Lastly, a point I make about that is that the expert evidence, and the importance of it, is such that you could have evidence that will lead to a considerably shortened hearing. In my submission, that is in the interests of both parties. It means that less money is spent through a lengthy hearing and so it is in the public interest. It also means to be available to deal with other MPT hearings. Then, just to make the point that expert evidence in this particular case will be available shortly and that point should be given.

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Lastly, public confidence in the MPT and in the profession would be enhanced if there could be a decision regarding an area of dispute that has arisen regarding whether a certain combination of drugs should be used. If it is right that this is a novel approach then if you have the experts evidence to say, as Dr Booth of the GMC, says, that there was not anything particularly wrong with that approach, then I put forward the submission that if there is a possibility that you could have expert evidence that could demonstrate that this approach could be taken under certain circumstances then that is information that should come in the public domain. If this is the opportunity for an expert to provide such evidence then it is in everyone’s interests. For those reasons and for the reasons that I have provided in a far more formal approach in my written submissions, I ask you to consider those written submissions when you are considering the hearing to be postponed. THE CHAIR: Ms Mallick, thank you. Mr Wakerley? MR WAKERLEY: Thank you. The response by the General Medical Council is to oppose the application to postpone this hearing. I think it is important when we examine an application like this to at least check the framework by which it can be made. You will be familiar with the General Medical Council (Fitness to Practise) Rules 2004 under which you operate. Of course, it is right that under Rule 29 of those rules, applications can be made for postponement and/or adjournment of a hearing before they start. Indeed, that is what has taken place in this case. In my submission, it is important that you understand the chronology of the case when you apply your minds to this particular application. The chronology of the case, as we understand it, is as follows. The allegations that you are aware of - because, of course, all parties will appreciate you will have seen the allegations themselves although not yet the evidence that supports them - stem from 2013. They are already three years ago. At the beginning of 2016, 20 January, the Rule 7 letter was served upon this registrant together with the materials that supported the allegations. That included a report by Dr Ewing, who is the expert instructed by the General Medical Council, whose original report is dated 30 June 2015. That expert report would have included her curriculum vitae, her experience and qualifications to substantiate the things that she set out in that report. Immediately picking up, please, if I may, on a suggestion within the written document that you have been provided with today, which is on page 10, bullet point 8, that it is suggested presently the MPT have a partisan report, is one that we invite is withdrawn. The expert is instructed as an independent expert and is aware of her duties to provide her opinions to the Tribunal rather than to the party who instructs them. It is not right to suggest that she is partisan. We

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make the point that this doctor has been aware for some considerable time of the evidence against her and where it comes from, including the expert instructed by the General Medical Council and her ability to give that evidence. The doctor responded to the Rule 7 documents in February. In May the Rule 8 letter was provided. A telephone conference took place in June. You have already been referred to some of the detail of it. On 3 October she was sent – that is the registrant was sent - the notice of hearing with the dates for this Tribunal. It was aware from the telephone conference in June that this was the timeframe that had been allotted for this case. On 12 October a letter requesting a postponement was sent by the registrant. It was dated the 20th but its date of sending is the 12th, so we have taken the first date of that, which is, in fact, correct. That matter was properly put before a Case Manager, who made a decision upon it and decided to refuse the application. That decision was communicated to all parties on 24 October following the opportunity for both parties to make representations to the Case Manager about the application. Both parties took the opportunity to make those observations. There was a subsequent request for a postponement, at which point, as I understand the chronology, my learned friend had been in a position to make some preliminary observations to the Case Manager. Again, the Case Manager refused to postpone the matter and that decision was communicated on 3 November 2016. The reason that, in my submission, those decisions are relevant to you is that when one looks at what the rule says about case management, which is Rule 16 of the 2004 rules, in particular Rule 16(7A), which reads:

“Directions issued by the Case Manger shall be binding on the parties and on any subsequent Tribunal considering the case, unless the Tribunal considers that:

(a) there has been a material change in circumstances; or

(b) it is not in the interests of justice for that to be the case”

i.e. that the decision of the Case Manager should be binding. In the first instance, as a matter of law, it seems to us that my learned friend must persuade you either of 7A(a) or 7A(b) in order that you can, in effect, not be bound by the Case Manger’s direction, her direction being to refuse the postponement. I accept that it is within the power that you have to raise things of your own motion. As I understand the way that the application is put, it is likely to be suggested that it is not in the interests of justice for you to follow the earlier

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decision and that you should make your own decision. That is something which you have the power to do provided, as I say, that it applies according to the rules. As to how to apply the rules, again I think it is important that if there is guidance you should remind yourself of what it is. The guidance that I have found is the question of “The postponement of an Interim Orders Tribunal or a Medical Practitioners Tribunal hearing under Rule 29 guidance”. Again, I am sure that it can be made available to you if you do not have it to hand. Under the heading of “Application for a postponement of a Medical Practitioners Tribunal hearing” it says at 10:

“When considering the written submissions for a postponement of a hearing and any representations received from the other party, the factors taken into account may include the following, non-exhaustive, examples.”

It is not suggested that these are the only criteria that you can take into account but it may include the following:

“Whether a request based on the need to prepare or obtain evidence relevant to the allegation regarding the doctor’s fitness to practise is supported by sufficient reasoning, taking into account the length of time since the event(s) complained of.”

The second bullet point:

“Whether the benefit of granting a postponement outweighs the resulting prolongation of uncertainty for the doctor regarding their fitness to practise.”

It says:

“For example, the Case Manager will want to be satisfied that an application based on the party’s unavailability is of sufficiently greater importance than the case before the Tribunal.”

The third bullet point:

“The availability of, and the impact of a postponement on, witnesses (both lay and expert) who are required to attend to give oral evidence, which might impact on the efficiency of proceedings if rescheduled.”

The last bullet point:

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“Whether the doctor is subject to an interim order.”

That is the full extent of the guidance that is given to you, as far as I have located it in terms of that issued and available to you. It seems to me that you ought to, in order to apply your minds as to whether the Case Manager’s direction should be binding on you, understand the way in which those decisions were reached. To that effect it seems to me that you ought to see the determination of the Case Manager both on 24 October and then latterly on 3 November, obviously, both of this year. I do not know whether those are available for you. I have copies but I think it may be that there are copies already available. Could I invite you to receive those as C1 and C2, please? THE CHAIR: Yes, C1 and C2. MR WAKERLEY: I think we will have enough to make sure that if my learned friend has not got these in paper form then she will have. C1, I would ask is obviously the first in time, 24 October. (Same handed to the Tribunal). I am afraid the dates are on the last page of the determination. C2 is the 3 November, please? (Same handed to the Tribunal). Just looking at those briefly, I would invite you to consider them in full when you retire to consider this application, please? I think it is important that the General Medical Council’s position as regards these various applications remains constant. You can see the GMC’s position, as it is described, on the second page. It starts at paragraph 5. This is the original application. The GMC oppose the request for postponement raising the following points:

“a. The GMC does not accept that…” It says Dr Linch here but it means Dr Ewing. Dr Linch is the expert who the registrant wishes to instruct. Dr Ewing is the General Medical Council’s expert.

“a. The GMC does not accept that Dr Ewing is an inappropriate expert as she works in a role similar to that of Dr Brito-Babapulle held at the time of the allegations.”

Secondly, the question is raised as to when it was that Professor Linch was instructed or sought to be instructed. As you see, we submit, the allegations and hearing date has been known since the start of this year and the summer of this year, respectively. The onus must rest with her to ensure she is has instructed an expert witness who is available to produce a report in good time and to attend the hearing. (c) relates to the disinstruction of her then legal team. That was based upon a comment made by this registrant in her original application, which I do not

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intend to dwell upon. It is said here that there appears to be a voluntary and tactical step. Again, that the email:

“It is no part of the General Medical Council to pry into why it is that the doctor disengages with her legal team. However, in her application the doctor suggested…”

You can see it at the top of the page, under (c), she had been advised that for her postponement application to succeed she needed to disinstruct her MDU appointed legal representatives. The submission that we were making at that time was that if this application is brought on the premise that she has no representation and it is a tactical decision, that is to be deprecated. You have heard submissions to the contrary this morning but we can look at those in due course. Although it is submitted at (c) that the GMC further notes that a self-represented doctor is able to present their own case without any prejudice. That remains our submission that these hearings, this type of Tribunal, is well used to a doctor who is either not represented by choice or for whatever reason. These proceedings can remain fair, which is what it is all about by the Tribunal giving as much leeway as it needs to to the self-representing doctor to conduct their own case. It would not be unique for this registrant to have to perform that function. Again, there was some argument about lack of disclosure at that time in relation to Dr Ewing’s response to what was considered to be new evidence provided by the registrant. As far as that is concerned, it is said there that the GMC will invite Dr Ewing to consider any documents that this registrant puts forward either prior to or during the course of the hearing. Again, that is not unusual. It is to be expected that, at some stage, if there is additional material that ought to be considered, it would be. That has been done. I will be in a position today to provide this registrant with Dr Ewing’s further supplemental report based upon all of those matters which this registrant has submitted in the course of the last few weeks by electronic communication. The GMC submitted that it is in the interests of all parties, in particular the public interest, for the hearing to proceed without delay or inconvenience to a number of witnesses – you know there are 12 witnesses. Arrangements have to be made for their ability to give evidence whether it is in person or by any other mechanism. The Case Manager then set out – and it is between paragraphs 8 and 17 – her reasons why she refused to postpone the hearing. Can I move then to the second decision, please? The GMC’s position - The application to postpone is summarised on the second page of C2 where the suggestions that the MDU had withdrawn funding are part of that application. The assertions that the doctor will be unable to cross-examine witnesses or gain

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a fair access to a resolution of the dispute, again, were points being made to the Case Manager that this registrant wished to instruct another expert, Professor Linch; again resubmitted as part of this application. Although it is said that it submitted that this could not have been identified earlier as Dr Brito-Babapulle had not received the opinion of her appointed expert. Certainly, Dr Brito-Babapulle was in possession of all of the reports of Dr Ewing long before this time. She had had the initial report of June 2015, an addendum in September 2015 and then a supplementary report, dealing with the matters raised by the doctor in her Rule 7 response, in August 2016. Again at (c), that application referred to a number of positive reports in locum posts. It says here, “which had not been considered by the General Medical Council expert”. Again, the impassioned plea that you have heard this morning relating to the testimonial evidence was before the Case Manager when she made her decision. The GMC’s position in this application was set out at 9, posing the question adding to the previous observations. The GMC notes that there was a disinstruction due to a disagreement about the chosen defence expert. It is submitted that if that is right that it must have been known to this registrant that the risk of funding being withdrawn would have been present. Again, it has previously been submitted that a self-represented doctor is perfectly able to present their own case before hearings such as these. Again, the same point is made in (b) that the onus is upon her to instruct whichever expert she wishes but that it is available in good time and that such person is available to attend her hearing. There was some suggestions in correspondence that the doctor had, in fact, sought an alternative expert to Professor Linch, a Dr Miller, but that, obviously, did not appear to result in anything that satisfied the registrant. Again, the GMC maintains that it is in the public interest for the hearing to proceed without delay. The reasons are given by the Case Manager. Again, we submit that they are appropriate. It is appropriate to find, as a reason, that the allegations brought against this doctor are, if they are proved, likely to damage public confidence and may represent a risk to patient safety. Therefore, there is a public interest in the resolution of those issues at the earliest available opportunity. The extent to which you should examine the testimonial evidence that has been placed before you this morning, in our submission, it is not for you at this stage to determine whether Dr Brito-Babapulle is impaired. That is something which you determine when you have first found facts on the basis of the evidence that is presented before you to support the allegations that are made then, whether on those facts that you have found proven, if any, there is misconduct proven, which is that which is alleged, and then if, on the basis of that finding, whether this doctor’s current fitness to practise is impaired. It would be entirely wrong

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for you, in my submission, to make any decision at this stage that this doctor poses no risk to the public, provides no risk of damaging public confidence in the profession because those are the very matters that bring her before you, as a Tribunal, to determine substantively. Whilst, of course, my learned friend is able to put before you any material that might assist you in the decisions that you need to make about whether to postpone or not, in my submission, you should not be making decisions about the ultimate matters at this stage. We repeat the observations that we have made to date. The ultimate question is whether she can have a fair hearing. It is our submissions that she can. The expert evidence in this case touches on some of the allegations but not others. It is an examination of her conduct at the time. It is a leap in the dark to suggest that postponing this case for further expert opinion will shorten the case. That is entirely dependent upon what that evidence would reveal. It remains our submission that such evidence should have been available well before today’s date if it was going to be relied on at all. There is, in effect, nothing new within that which has been submitted to you today from that which had previously been submitted to the Case Manager. It is suggested that the question of partial disclosure is new. As I have indicated, there is some disclosure still to be given to this registrant in the form of a final response by the GMC’s expert to all of the materials recently submitted by the registrant. That will be done. As far as any other enquiries into the relevant histology department, there has been correspondence between the parties about that. If the registrant is able to satisfy the General Medical Council that there is something of relevance that we can help to obtain then we would take steps to try to obtain it. As I understand the position, there has been correspondence about that topic. Again, if there are criticisms to be made of Dr Ewing, if, in some way it is going to ultimately be suggested that she is not in a position to provide the evidence that she has provided then that is something that can be litigated and may, in fact, be to this registrant’s advantage. Again, they are matters which are largely unknown. The lack of the expert that she wishes is of her own making, in our submission. That the allegations are complicated – she has demonstrated no doubt through various correspondence, and to some extent the testimonial evidence that she presents, that she is more than capable of representing her own interests. Again, if she feels uncomfortable challenging a patient who she cared for, that is something that can be approached by the Tribunal in whatever way can assist her. As I have already said, the testimonial evidence that has been put forward cannot decide the ultimate issues. The fact that there is only one patient or the fact there has been reference to one patient as a matter of fact, the other

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patients that are involved in the allegations that are brought against this registrant are, sadly, deceased and so they are not available as witnesses before you. The fact that there is a single witness saying something again does not assist you greatly. Our submissions are as they have been throughout that these are matters that this doctor has brought upon herself by the conduct of her defence. She has had ample time to prepare her case properly. There is a public interest in these matters being dealt with expeditiously and this hearing date having been known as long as it has been should continue. THE CHAIR: Mr Wakerley, thank you. Ms Mallick, is there anything further? MS MALLICK: Yes. Just dealing firstly with Rule 29. You have been directed to look at the rules by my learned friend. It is indicated that the rules suggest that you should consider the Case Manager’s decision. I have put forward this submission. The relevant rule for postponement and adjournment is Rule 29. There is nothing in Rule 29 that suggests that you are bound by the Case Manager’s decision nor is there anything in Rule 16 to which you were taken to. I also ask you to consider the wording used in Rule 16. I put forward the submission that whilst it is right that you should have regard to the Case Manager’s direction it is my submission that the decision provided by the Case Manager is not a direction, it is a decision. I do not see a definition of direction in the MPT rules. Specifically, the application outcome, in my submission, is a decision by the Case Manager rather than a direction. In any event, if you are not with me on that point and if you come to the conclusion that Rule 16 albeit not referred to in Rule 29 is relevant for your consideration then there are two matters that I immediately bring to your attention. Firstly, I put forward the submission that, clearly, it is in the interests of justice. My submissions are focused on the issue of fairness for you to consider this postponement application. I also ask you to consider, when looking at that specific rule, the fact that there are matters that have been raised before you that have not been previously considered, in any event, by the Case Manager. That is important because the issue of partial disclosure, accepted by my learned friend’s submission, who said that the GMC expert has yet to provide a response on all the further evidence. What you have now is a submission for postponement being put forward on certain parts on a different limb than previously considered by the Case Manager. That is important because that means there is no previous decision on that issue of why a postponement should be granted in the Case Manager’s decision. Dealing with what my learned friend says about partial disclosure, it has been suggested that in relation to partial disclosure there are two things to be said. Firstly, in relation to the GMC expert having yet to respond to all the further evidence there is a breach of directions that should have been done for these

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proceedings. The reason why, in this particular case, that is important is because if you proceed without the doctor having legal representation she is/has been hampered in preparation and will be at a disadvantage during these proceedings where she will not have had the expert’s response beforehand. She will have to grapple with that response whilst she is dealing with cross-examination and representation at this hearing. There is a very good reason, even on my learned friend’s submission, why you should postpone this hearing. Even if she were to continue and she had legal representation at this hearing, I would put forward that it is simply not fair to expect proceedings against a doctor on some 16 allegations to proceed without the expert having put forward a further response on all the evidence, commenting what this doctor, a Consultant Haematologist with over 30 years’ experience, has had to say. I have looked at previous decisions having said that each circumstance is different. I stand by that submission. I have looked at previous decisions of the MPT when a postponement has been granted. Certainly it has been granted where the GMC themselves have not made all relevant disclosure. I make my submission properly, based on previous circumstances where a postponement has been granted. The second basis upon which it is said there is partial disclosure is that it is accepted by my learned friend that in correspondence the doctor had pointed out that there were certain doctors who were relevant for the purposes of a number of allegations and it was said that there should have been a statement from Jackie Winsar, who the doctor cannot approach because she works for the Isle of Wight. There should have been evidence from histeopathy from Dr ComorutI (?) and there is no further evidence, and there should be, from Marion Walker, who works in the histology department. The GMC, being aware through correspondence that the doctor had sought further disclosure not only in terms of witnesses but also in terms of documentary evidence, the GMC have failed to provide that disclosure. It is my submission again that there is a good basis for the postponement because disclosure is not complete and the fairness of these proceedings are compromised. I believe that the first telephone hearing, the issue of further evidence in any event had been highlighted to the GMC. I am instructed that that being the case the GMC have, in fact, had ample time to provide that further disclosure and yet have failed to do so. Really, it is not simply that the registrant seeks a postponement for her own reasons but she puts forward the position that the GMC themselves are not properly enough prepared, having not granted full disclosure to proceed with the allegations against her. Then addressing the next point, being on the issue of the expert evidence, it has been contended by my learned friend that the doctor had suggested that she was told to disinstruct her MDU appointed representative. What happened

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between her legal representatives is a matter of professional privilege. It is my submission that it is quite rightly pointed out by my learned friend that that that really should not be a matter that is for you but what I understand is that you have been pointed to something that is said at sea that is obtained from correspondence from the doctor. The point I make here is that you should ignore that particular paragraph because it is subject to legal professional privilege. In any event, I am instructed that that is, in fact, a mis-quote of what she said. It would be improper, and I could not imagine that any legal representative, certainly one as experienced and reputable as Hempsons, would tell her to disinstruct them bearing in mind that she, at that stage, would be without legal representation. Her position is that it was always the case that MDU funding was withdrawn, which is why Hempsons and Linda Goldman, Counsel, could not continue to represent her. I say that you must ignore what is said by the Case Manager at paragraph (c). I also put forward the submission that you must not get the wrong idea about any expert that has given opinion on behalf of the doctor. The reason why the doctor seeks to have Professor Linch to give evidence – I cannot emphasise enough – is because of his field of expertise. She could get any expert to give evidence that could support her. A Consultant Haematologist could be obtained but the point is that it simply would not be good enough. It would not be good enough because you would have before this Tribunal two so-called experts that were not expert enough to deal with the allegations. That is why she wishes to have the appropriate expert instructed. Then, dealing with another submission made about Dr Miller, again, it must not be said that Dr Miller did not support the doctor. The point is said again that it is a question of expertise. Bearing in mind that you do not have any evidence, in any case, in front of you, you must not think that the evidence has gone against her. That is not the case. The point is that they were not sufficiently expert to provide evidence. That is her position. When you are considering that you must consider that she is not somebody who is a Consultant Haematologist for just five or six years. She has been practising in haematology for over 20 years. She has been a Consultant for all that time. The point that I make is that with her experience it is perfectly reasonable for her to expect there to be somebody who is not simply her peer group but somebody who has a greater understanding, so that she feels that she is being properly assessed in how she conducted herself. Another point made by my learned friend was regarding the length of hearing, that the submission I made that proceeding would be shortened is one that really is a matter where you are shooting in the dark, so to speak I put forward the submission that, no, that is not the case. The reason I say that is for this reason; it is bound to be the case that if you have somebody who is considerably more expert than the GMC expert there is going to be some sort of consensus being formed. At least if you have two experts you will have some agreement.

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If there is to be disagreement then there will be disagreement. Having two experts give you opinion and having them come to some sort of discussion about their relevant position will obviously, in my submission, shorten the proceedings, if not for the fact that the doctor herself may concede the charges against her if the expert gives evidence that supports the GMC’s position. Then, lastly, dealing with the ultimate question before you, the ultimate question is fairness. Both parties agree that. It is my submission that in addressing you today and asking you to look at my written submissions and then responding, I have focused on the fairness of these proceedings. It is of the upmost importance, where a doctor with over 30 years’ experience faces serious consequences at the age of 62, that she be given a proper opportunity to deal with the allegations. She has wanted the appropriate expert since February of 2015 when these allegations were first made. It is my submission that if she has been failed by her legal team then that is not a matter that should deprive her of a fair hearing. Then, when you are considering fairness, I ask you to consider that the reason why I asked you to look at the references from various Consultant Haematologists was not in order for you now to pre-determine impairment. I know that there are four stages to these proceedings. You have got to go through fact finding, you have got to consider whether her fitness to practise is impaired and you have got to then consider whether you should impose a sanction. I am not suggesting that all that should be by-passed in order for you to consider these references. Why I have referred to those references is to highlight that the GMC’s position that this postponement should not be granted is thoroughly unreasonable because when you are looking at the risk to the public you must consider the present circumstances. She is not seeking to challenge the interim sanction that is imposed upon her at this stage in this postponement application. What she is saying is that there is an interim order in place, I can provide an expert opinion in that timeframe and we can have the matter listed before the issue of sanctions comes up. Even if we cannot, I am suggesting that any postponement period should be for a very short time just to allow my expert to give an opinion and for there to be some consultation between the experts. For that I put forward that the references from other Consultant Haematologists are relevant at this stage because it deals with the main contention against the doctor being granted a postponement. You want to be satisfied, if you were minded to grant a postponement whether the public were safe. That is why it is important for you to look at those references. My submission is that in this case you can confidently postpone these proceedings in confidence knowing that the present condition that you have in place allows this doctor to continue in practice without this Tribunal being concerned about the decisions that they have made.

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For those reasons I ask you to allow the postponement. I ask you to bear in mind that there is a submission on partial disclosure that did not go before the Case Manager, in any case, in relation to the other aspects that have gone before the Case Manager. I put forward the submission that you, the Tribunal, have had the privilege of hearing submissions orally put on behalf of the doctor and you should consider the interests of justice. THE CHAIR: Ms Mallick, thank you very much. Mr Wakerley, have you any comments to make on the additional matters of the partial disclosure? MR WAKERLEY: Only this, please? Certainly, we do not accept at all that the General Medical Council are in breach of directions. There were telephone conferences conducted in this case to seek to make sure that when it came before a Tribunal it was ready. This doctor was present and involved in them. The expert’s evidence has been available to her throughout. The fact that we are going to provide further disclosure, or a further supplemental report, today is because the doctor did not comply with the direction that she provide expert evidence by 10 October of this year, which was her disclosure duty. That date is put in for obvious reasons that when, or if, a doctor submits an expert report that they wish to rely upon, time is then available for the experts to consider each other’s reports, if necessary, and to try to crystallise issues and the like. No disclosure of any expert report has been made by this doctor but subsequent to her applications to postpone she has sent a good deal of correspondence to the General Medical Council with detailed submissions about what she says in response to the allegations. Of course, she has an expertise of her own and she is entitled to say that I am an expert and I rely on my own expertise. It is entirely proper for the General Medical Council to submit those observations to Dr Ewing for her response. That is what has taken place. Dr Ewing has and is in a position to provide her response. To suggest that the GMC are in breach of some sort of direction is simply not right. The GMC did identify at the earliest conference that it regarded its disclosure as complete albeit that there may be some matters that Counsel, when instructed, might want further elucidation. The GMC maintains that it regards that once it has served the latest supplementary of Dr Ewing, which deals with the matters raised in the last few weeks, that its disclosure obligations are complete. It has sought clarification. If there are other witnesses that can provide relevant evidence, if this doctor explains who they are and what they might be able to say, the GMC would seek to assist. If she is not able to get those witnesses herself, there have been no breaches by the General Medical Council that we accept of any directions. Certainly, it is right that the supplemental expert report that I will be providing to the registrant today she will need to deal with herself, on the assumption that her Counsel is not available to represent her. She has no other expert but

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herself. Again, in the circumstances of this case, that is a situation which she has brought upon herself. It is still not unfair. THE CHAIR: Mr Wakerley, thank you. MS MALLICK: I have only got one document that might assist. It is a note of the listing telephone conference and what was discussed. I think it is relevant to the issue of what discussion took place and the submissions I made regarding what had been said. I am just going to discuss this document with the doctor, if I may, before I hand it to you because she has only just referred me to it. It was from that document that I took my submissions. THE LEGAL ASSESSOR: Ma’am, to be fair, I think the GMC said that there was more than one telephone conference. MR WAKERLEY: Yes, there were two telephone conferences. THE LEGAL ASSESSOR: Therefore, to pluck one out, you have heard the representations and I think the Counsel has been allowed to come back and address new issues but normally now you would proceed to my advice. THE CHAIR: Ms Mallick, I think that is correct that we should proceed to hear legal advice. MS MALLICK: Very well. I will accept what has been said. THE CHAIR: Thank you. Ms Oakford? THE LEGAL ASSESSOR: This is an application to adjourn this case. I think it is quite clear that you are not at this time making any decisions as to competence, fitness to practise or otherwise. The testimonials are a factor that you may wish to consider but it is their opinions in the testimonials and not a finding of a Fitness to Practise Tribunal. Also, I want to make it clear at the beginning that an expert, although instructed by the GMC, is an independent expert in the sense that an expert owes their duty to the Tribunal and not to the GMC. The legal position in relation to this is that anything you should do you should bear in mind the overriding objectives of the General Medical Council, exercising their function is the protection of the public. The General Medical Council overarching objective involves the pursuit of the following objectives: To protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession and to promote and maintain proper professional standards

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and conduct of members of that profession. You must have that objective in mind in all decisions that you make. In the submissions by the registrant’s Counsel you have been referred to civil procedure rules. Civil procedure rules do not technically apply to these proceedings although you may find analogous matters that you wish to consider. It is the 2004 General Medical Council rules that you are applying. Indeed, it was said in Zia v The General Medical Council 2011, that the construction of the rules are intended to provide a framework for the fair, economic, expeditious and efficient disposal of allegations made against medical practitioners. You have been referred to two rules. Rule 16(7A) deals with directions by the Case Manager. The Case Manager’s directions not to postpone a hearing is a direction. It may be a decision but it is a direction. Therefore, you will have to consider has there been a material change in circumstances or it is not in the interests of justice for that to be the case. Rule 29 gives you the power to adjourn a hearing. In relation to that you can do that of your own motion or on application, as has been the case today. You cannot deal with Rule 29 in isolation disregarding Rule 16. You have a discretion whether to adjourn and that means it is a matter for you but that discretion must be exercised judicially. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. There have been a number of cases before the court that have dealt with absent registrants but in relation to those cases some of the principles do apply for an application for an adjournment. I would say that some of the factors you must consider is delay in the case being dealt with. Witnesses attendance – it is very important to realise that witnesses in this case, 13 witnesses, have been scheduled to attend with the added stress to them of being witnesses. You yourselves are present as well, as is the GMC Counsel. You will have to consider the possible length of the adjournment. At the moment any estimate of time estimate in some ways is speculation because you do not know whether the doctor will actually be represented and what the reports of any expert will say if an expert is instructed. A very important factor is the history of the case. You will have to have regard to what has taken place before and consider where we are today. You will realise that the consequences of delay are that witnesses’ memories can be affected. You will be aware from the recent case, which was a case of the Court of Appeal in Adeogba where it is said that it was the culture of adjournment is to be deprecated. Some have said that in that case it was said that the High Court Judge said to put an emphasis on the fact that it was the first hearing and an

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adjournment was unlikely to be highly disruptive or inconvenient to attending as a witness. It was said in that case that it must be remembered that these witnesses had been scheduled, the panel had been scheduled, accommodation set up and there is nothing to replace this hearing should this hearing be adjourned. Having said all that, at the end of the day it is for you to have regard to the interests of justice and fairness. Obviously, fairness is of prime importance to the doctor but also you must take into account fairness to the GMC and also the decisions of the Case Manager in this case. You must give clear reasons for your decision. THE CHAIR: Ms Oakford, thank you. Are there any comments on the legal advice? Mr Wakerley? MR WAKERLEY: No, thank you. I did not address you on the case that your Legal Assessor has just reminded you about. That authority does, obviously, exist that the culture of adjourning cases generally is considered to be deprecated. Again, I do not think that overrides the interests of justice test, which has been properly articulated to you. THE CHAIR: Thank you. Ms Mallick? MS MALLICK: I have only one comment. Whilst Rule 16 refers to the direction my submission is that it is limited to direction of not postponing but it does not go to the body of the reasons provided by the Case Manager. THE CHAIR: Thank you. THE LEGAL ASSESSOR: As I said, I would consider it was a direction. THE CHAIR: The Tribunal will adjourn to make its decision. It is difficult at this point to say how long that will take. We will commence after lunch with our determination. We will keep you informed of the progress we are making. Thank you very much.

STRANGERS THEN, BY DIRECTION OF THE CHAIR, WITHDREW AND THE TRIBUNAL DELIBERATED IN CAMERA

STRANGERS HAVING BEEN READMITTED

THE CHAIR: Good afternoon, everybody. The Tribunal has made a decision. Dr Brito-Babapulle and Ms Mallick, the Tribunal has not agreed with your application to postpone. We would plan to go ahead with the proceedings. In order to avail you of that information as soon as possible without delay - we have not got the written determination available as yet. That will be ready tomorrow

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morning - we thought that it would be the fairest thing to let you know that we had not agreed your application to postpone. I do not know whether you would need some more time. We have potentially got some other preliminary matters before we open. We would not formally open until we have handed down that determination tomorrow but we wondered whether there were any other preliminary matters that the Tribunal could deal with. Mr Wakerley, is there anything from you? MR WAKERLEY: I am not certain about that. I think, in the first instance, of course, it is very much a matter for the doctor today as to whether she remains represented going forward from now or whether there are elements of my learned friend’s service that she is to provide her with today. In the first instance, it might benefit the parties if we might just have a moment to reflect on the decision that you have just given. If there is other work that you can usefully perform today then, obviously, we would prefer to use that time. It may be that the first thing is that we just have a little bit of time between ourselves to see if there is anything that is immediate. THE CHAIR: I think that is very reasonable. Dr Brito-Babapulle, we thought that you would probably need some time to think through that. As I have said, apologies that you have not got the written determination yet because that does take some time to write down. That will not be available until the morning. It would be appropriate to formally open then. We thought that both parties may need some time to think about how to best take things forward now in the light of that decision. That is why we wanted you to know as soon as we made that decision. If we adjourn potentially for the rest of today but if there is something that you feel initially that you would like to take forward then we will still be available. I would say, certainly, for the next hour we would be available and working on that determination, if there is something else that you feel we could address today, any other preliminary matters. MS MALLICK: Of course, there is the issue of disclosure, which was raised in the postponement application. On behalf of the doctor, I would be asking for disclosure of those documents that we have requested from the GMC and have them sooner rather than later. THE LEGAL ASSESSOR: Did the GMC they were available? MR WAKERLEY: Again, I think it best that we have a short discussion between the parties. If we need to trouble you for a ruling--- THE CHAIR: Could I suggest then that we have half-an-hour adjournment and at that point if we bring parties back in to see whether there is anything else that you would like us to do. A half-an-hour adjournment in the first instance. Thank you.

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(The Tribunal adjourned for a short time) THE CHAIR: Welcome back. I hope that has given you sufficient time to have some preliminary discussions on how we are going to take things forward? MR WAKERLEY: Yes, it has. I think the short answer is that there is little else by way of preliminary argument that you will be required as a Tribunal to deliberate upon. My understanding is that my learned friend is only here for today and subsequently the doctor will represent herself, of course, as has been articulated before you as part of the postponement application. We have had some discussion about bundles and witnesses that the doctor will want to cross-examine as opposed to make submissions about. That has all been helpful. We will try to factor some of that in in terms of timetabling. I think the short answer, certainly from the General Medical Council’s perspective, is that we do not seek to raise any other preliminary matters before we move to the next stage in the proceedings. THE CHAIR: Thank you very much. That is very helpful. Ms Mallick? MS MALLICK: I have spoken to my learned friend and we do seek further disclosure. At this point in time we do not seek a ruling because we had hoped that the GMC co-operates and provides the documents that we request. I know that there has been correspondence between the GMC and the doctor regarding that further disclosure and the witness evidence that the doctor seeks in order to verify her position and what she specifically said to a witness. That concerns her because that is specifically evidence that would support her position. She feels that the GMC have not then provided that evidence. They have a duty to do so. I have spoken to my learned friend and he is happy for us to put forward what disclosure we want and to then take the appropriate steps. THE CHAIR: Thank you very much. I think it is probably appropriate now to say that we will adjourn for today and we would plan to reconvene at 10.30 tomorrow morning. Sorry? MS MALLICK: There is just one more point in relation to exclusion of a witness. There is evidence from one particular witness regarding a patient that is not part of any allegations. The witness is Samantha Harrison. I highlight that because it is not relevant evidence. It does not go to any of the allegations and the doctor has asked me to ensure that that evidence is excluded. THE LEGAL ASSESSOR: I just want to make sure. Mr Wakerley, is that somebody who should be anonymised? MR WAKERLEY: I am afraid this is the first that I have---

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THE LEGAL ASSESSOR: I am just concerned that we have mentioned a name. Is it a patient? MS MALLICK: No, it is not somebody who should be anonymised. Samantha Harrison is not a patient. MR WAKERLEY: I do not think that the witness is someone who has been anonymised. She does not feature in any of the charges. The question as to the evidence to be excluded, again, that has not been raised hitherto. Obviously, I will reflect on it if my learned friend wishes to enlighten us. MS MALLICK: The point made on behalf of the doctor is, firstly, that the witness gives evidence regarding a patient that is not relevant to any of the allegations. MR WAKERLEY: I think, not to talk across my learned friend but, if she is able to identify for us the paragraphs – this will mean nothing to you because you have not got any of the statements. THE LEGAL ASSESSOR: Also, the Tribunal may want to see the evidence to exclude it. MR WAKERLEY: I think, in the first instance, if my learned friend perhaps outside – I do not think this need trouble you at the moment. THE CHAIR: I think at this stage if you could take it outside because we have not had any of the information that we could make any decision about. If you could have those discussions outside that would be helpful and then we can be prepared, when we do take that as part of the proceedings. MS MALLICK: I accept that that is a proper course to take. The only reason I have highlighted that is simply on behalf of the doctor, who is here and may well not be represented tomorrow. I have taken the opportunity. MR WAKERLEY: Can I say that I am not criticising my learned friend? It is very helpful given that she is here, I understand pro bono, that she assists wherever she can. This is a matter which, it seems to me, the parties can discuss between themselves and if we need to involve the Tribunal we can do so in due course. THE CHAIR: I think that is very helpful. The way to take it forward is in the best interests of the doctor. MS MALLICK: Very well. THE CHAIR: If there are no other matters for today then we will adjourn. We are hopeful that we would have the determination to hand down to you at 10.30 tomorrow. We would reconvene then. Ms Mallick?

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MS MALLICK: I am very sorry. There is just one further matter and one on behalf of the doctor. There was some talk that there would be one day for reading the materials that the Tribunal asked for and the GMC were proposing to give the Tribunal. I do not know if that still is the case? If it is, will that reading day be tomorrow, once the case is open, or does the GMC propose to take it from one afternoon to the other? It is just so that I can assist. THE CHAIR: I cannot answer that because the Tribunal has not asked for any reading day. That might have been something suggested or was suggested in their opening by the GMC but the Tribunal has not asked for a reading day. We sometimes do end up with a reading day but we do not know how much information we are going to be supplied with. MS MALLICK: May I say that I got an email, specifically informing me that I would not be required on Monday because it was a reading day. I then emailed back to say that we had an application to make for postponement in which case I would need to be present. Then I got a response back that the case would not formally open until that postponement application had been made. Therefore, the reading day would not be on Monday. I just wondered if there was going to be a reading day. THE CHAIR: Mr Wakerley, do you want to make some comment regarding that? MR WAKERLEY: Only again that I think I can help my learned friend and her professional client away from you, the Tribunal. I am not trying to hide anything from you. In the ordinary course of events, once we have moved to the next stage of this case I would be expecting to open the case to you at which you will learn a little more about allegations that at the moment you simply know by their heads. I would then be inviting you to read the bundles, which to a large part will stand as the examination in-chief of the witnesses in the case. That will take you a little time. Whether it takes you a day depends on the speed at which you digest and read it. To some extent, of course, there will be times when you are engaged in business where the parties are waiting for you to finish that function. It is not suggested by me that we invite you to take an entire day out to do that. It is as long as it needs to be for you to perform your role. I do not know whether that enlightens my learned friend? MS MALLICK: It does assist me. THE CHAIR: I think that helps clarify. MS MALLICK: Actually, it does, yes. It gives a very good indication as to the fact that it is really for the Tribunal to indicate. I am sure the Tribunal will have its own views as to how long it is going to read nine witness statements and the witness statement of the doctor and the relevant documents that have been presented. They themselves will know if they need a whole day or not.

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THE CHAIR: It becomes an awful lot clearer when the GMC opens their case. It does give some indication but all we have had is heads of charge. We have not seen the bundles. It will become clearer but it will be up to the Tribunal to determine how long it takes or needs to read those documents. A day may be a very good estimate. MR WAKERLEY: Yes, we are talking along the same lines now. The evidence in this case is fairly dense but once you have a grasp of it, it is hoped that the issues will be precise and clear and so time spent at the start is not going to be wasted time – if I can put it that way? Again, whilst my learned friend is here it is something that we can discuss outside if there are matters which concern her. If we have an opportunity we would be grateful for that. MS MALLICK: Then there is just one last question. I do not mean to be annoying. Is it the GMC’s proposal to call the expert evidence last? Again, that would be a helpful indication to the doctor. THE CHAIR: Mr Wakerley? MR WAKERLEY: One of the things that we have done is try to put together – you will appreciate that case management of a case like this requires input from both sides. Timetables are then set based on those case management decisions. There was a time when this doctor was represented legally by a firm of solicitors from the area and we have prepared a timetable based on discussions that we had. We are outside this afternoon making sure that the witnesses that this doctor really wants to ask questions of are available and those that she does not, in fact, want to ask questions of are not put to the trouble of coming. We will try to see whether or not there is the ability to move witnesses from dates when we had scheduled them to attend or not. It is right that it was always our intention to have the expert evidence once we had established all of the other witnesses. My learned friend, or certainly her client, will have an email shortly, by which I mean imminently, setting out our proposed order of witnesses, which I hope will help focus her thoughts on a daily basis as to what tasks she has on the following day. THE CHAIR: That is something you say you will have shortly because, obviously, the Tribunal has not had that. MR WAKERLEY: No, you will not have that yet. I say “shortly” because it is now in cyberspace waiting to arrive on any electronic device that the doctor possesses to receive such communications. MS MALLICK: I have a telephone. That is helpful. Thank you very much. There is just one last point. It is pointed out by the doctor that there were directions, and I have seen the directions but I was not involved at that stage, that clearly stated that there was to be a joint bundle produced in this case. The doctor says that I provided my documents to Ms Neilsen, the solicitor for the GMC, and there

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should not have been any difficulty in the GMC preparing the joint bundle. Certainly, there was not any difficulty in the green one because I was constantly in contact with the GMC. What has resulted is that the GMC has emailed the doctor and said that this is our bundle and we have prepared it, these are the documents that we are going to rely upon. It is for you to prepare your bundle. The difficulty that the doctor has is that the one bundle that we have is marked because I marked it because I did not know what was going to happen today and, of course, I needed to prepare. Even for the postponement application I needed to have understanding of the case. The bundle that is unmarked is in the possession of the GMC yet not collated but you have one bundle. It also has her witness statement. We do not know what the GMC is proposing to do. I did speak to my learned friend about it and asked whether we should have a photocopy. However, the problem I have is that where there are directions it is important that those directions are complied with. The fact that the doctor could photocopy them is neither here nor there. There is a process. We have applied rules in denying the postponement application and it is only right that directions be complied with and the GMC take responsibility for a joint bundle so the doctor can feel confident in the process that is being adopted. THE CHAIR: Thank you. Mr Wakerley? MR WAKERLEY: Again, the extent to which my learned friend is informed may reflect the submissions that are being made to you. There have been telephone conferences with directions. Of course, an agreed bundle is something that people try to move towards on the basis of a Case Manager’s directions that require disclosure by both parties. That has been missed each time, we say, by this registrant. What has been sent is piecemeal documents in various emails over various periods of time in the recent past by which outside the directions given by the Case Manager. Some of the documents sent are not relevant. Other documents sent are not anonymised as they need to be. They are not paginated. As I understand it, each time the General Medical Council has replied, explaining to the registrant that this has to be done in a certain way. A document was sent which included references to the Rule 7 manifestation of the GMC papers. That is not the papers that you have or you will have. It was suggested that they be re-done so that it might assist you. That is the situation we are in. We do not have a defence bundle as such. There have been documents attached to dozens of emails over a course of time. We have sought to help the doctor where we can. The General Medical Council have prepared redactions to a document that she provided, to assist. There is no comprehensive bundle. We have invited again today minds to be turned to the documents that this doctor wants to submit at this stage, which should not be submissions. It should be documents. It can include her statement, which is what we have suggested.

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That is where we are with that. It is not a case of the GMC ignoring Case Manager’s directions and just doing what it wants to do. With respect, that is not a fair assessment of what has gone on in the history of this case. MS MALLICK: Could I just respond back? I am grateful to my learned friend. I am asked to point out (1) it is not good enough for the GMC lawyers to say that there were several emails. It is not unknown, particularly for solicitors, to have several emails where emails are sent. I have been able to collate the documents together. I do not see why the GMC solicitor, who must be very experienced in dealing with such matters, cannot do the same thing. Secondly, in dealing with the documents not being paginated, it is right, and we accept, the documents are not paginated. The reason why they are not paginated is because they were supposed to be a joint bundle. That means that you give your bundle to the person who is preparing the bundle for them to paginate it because only they know how sequentially they propose to have the bundle prepared. Moreover, it simply is not true that it was difficult for the GMC to know which documents that she was relying upon. She made it very clear the documents she wanted included when she emailed the GMC. Where there were several emails it is not in relation to the core bundles that the doctor relied upon. It was in relation to the different references that were sent to her and then forwarded on to be included to the GMC. I put forward the submission, circumstances not being unusual, it should not have caused the GMC the problems that they profess to have in preparing a joint bundle. THE CHAIR: I think that is probably as far as we can go today. THE LEGAL ASSESSOR: Madam, it is a matter that should be dealt with outside between the parties and only if they need you to make a direction that you should be dealing with it. MS MALLICK: Sorry. I was inviting the Tribunal to make a direction. I was going to invite the Tribunal to make a direction that the GMC prepare a joint bundle, as they have been directed to do. There should not be any problems at this stage in doing so. They have got the documents. All they need to do is simply put them together and paginate it. THE CHAIR: I think that the GMC solicitor also said that there were instances of things needing to be anonymising? Is that right? That is not necessarily the GMC’s responsibility. MR WAKERLEY: There was a direction that all documents, as I understand it, were disclosed that the doctor wished to rely upon by 7 October. That has simply been missed. As I say, emails have come piecemeal over the last two weeks with a variety of documents attached that are neither anonymised nor in

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any order. Some profess to be something which they are not in the sense that they are submissions rather than something that would ordinarily expect to be in a bundle. A joint bundle, of course, is something which is desirable if it can be achieved. If it cannot be achieved each party is responsible for its own bundle and the Tribunal receives two bundles and deals with them appropriately and accordingly. It is not a case here of the GMC having received a bundle simply and refusing to deal with it. It is a case of the doctor needing to assess what it is that she wants and can properly put before a Tribunal at this stage. It then being in a format that it can go to a Tribunal at this stage, which means that it is properly anonymised and any relevant matters redacted. It can be paginated howsoever but those initial steps are for the doctor to deal with and her representatives or, if she has none, herself. It really is not for the General Medical Council to put together her documents for her, redact them appropriately and likewise, particularly when it is not done in accordance with the directions that were given by the Case Manager. MS MALLICK: The only point I would make is a point I am instructed upon. I am instructed that there was compliance with the directions. I am instructed if there was non-compliance in relation to the additional further references, that came from various sources to the doctor and then she forwarded them on to the GMC. Those are my instructions. THE CHAIR: Ms Oakford? THE LEGAL ASSESSOR: I think there you are in a difficulty to make a direction because it is not totally clear to you. You have not had any evidence of what was expected to be given by a certain date and what was given by that date for the GMC to do a joint bundle at that stage. You have not got details of what has been received since. I think it is very difficult for you to make a direction at this stage. It might be asked later but at this stage you have not got all the information you need. THE CHAIR: I think that was just becoming rather clear. It is very difficult to give a direction in the absence of that. As you are aware, and as Mr Wakerley has said, sometimes you do get separate bundles and you get a separate defence bundle. It may be that that is the case to go along with here. I think it would be very difficult to make a direction in the absence of all the information necessary to do that at this point in time. At the moment all we can say is that we may have to accept separate bundles at the appropriate time. Obviously, we are aware that Dr Brito-Babapulle will be representing herself from now on and, obviously, assistance will be given where appropriate and as we can to facilitate her in doing that. That will certainly happen. I do not think we can give a direction at this point in the absence of information that the Tribunal currently has. Apologies for that but at this moment we cannot do that. MS MALLICK: Very well.

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THE CHAIR: Therefore, that does end the proceedings for today. We will reconvene at 10.30. At that point we will have the determination to hand down and we will be prepared for Mr Wakerley to open the GMC’s case. Thank you very much.

(The Tribunal adjourned until 10.30 a.m. on Tuesday, 8 November 2016)