Mahfouz, R (on the application of) v General Medical Council

Factual and Procedural Background

The Appellant, referred to as Plaintiff, is a cosmetic surgeon practising in The City, specialising in laser surgery. Charges were brought against Plaintiff by Company A's Professional Conduct Committee ("the Committee") relating to advice and treatment provided to various patients between 2000 and 2001. The charges included allegations of inadequate assessment, misleading claims about treatment efficacy, failure to obtain informed consent, inadequate treatment and post-operative care, and poor record keeping. Additional charges arose from interactions with an investigative reporter posing as a patient.

During the hearing in June 2003 before the Committee, four members of the Committee were exposed to prejudicial newspaper articles published after the first day of the hearing. These articles contained references to Plaintiff's previous striking off from the medical register in 1987, information not presented as evidence and considered irrelevant to the current charges. Plaintiff contended that the Committee members' exposure to this material compromised the fairness of the hearing and sought their discharge and a hearing adjournment.

The Committee, comprising two professional medical members and three lay members, was advised by a legal assessor. After hearing extensive submissions and considering relevant case law, the Committee declined Plaintiff's application to discharge themselves or to adjourn the hearing. Plaintiff applied to the High Court for a stay and judicial review, which was granted, suspending the Committee's proceedings. The High Court rejected Plaintiff's challenge to the Committee's decisions, and permission to appeal was granted.

Legal Issues Presented

1. Whether the Committee's decision not to discharge themselves after exposure to prejudicial publicity amounted to a breach of the rules of fairness or natural justice, specifically whether there was a real possibility of bias as perceived by a fair-minded and informed observer.
2. Whether the Committee erred in refusing an adjournment to allow Plaintiff to apply to the High Court for a stay of proceedings.

Arguments of the Parties

Appellant's Arguments

• The exposure of Committee members to prejudicial newspaper articles, including reference to Plaintiff's prior striking off, created a real possibility of bias, undermining the fairness of the hearing.
• The Committee misdirected themselves by failing to consider the possibility of unconscious bias, despite the legal assessor's formulation including this aspect.
• The fair-minded and informed observer would conclude that the Committee gave the appearance of ignoring unconscious bias.
• An adjournment was necessary to allow Plaintiff's counsel to prepare and apply for a judicial review, ensuring the right to a fair hearing was preserved.

Respondent's Arguments

• The Committee applied the correct legal test for bias as established in Porter v Magill and related authorities.
• The Committee members, experienced and trained, were capable of disregarding irrelevant and prejudicial material.
• The refusal of adjournment was justified in the interests of justice, balancing the need for expedition with Plaintiff's rights, noting that judicial review remained available.
• The inclusion of "consciously or unconsciously" in the test was inappropriate and would impose an impossible burden on Committee members.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the relevant legal test for bias as that set out in Porter v Magill: whether a fair-minded and informed observer would conclude there was a real possibility of bias. The Committee's decision was examined against this standard, considering the nature of the prejudicial newspaper articles, the time elapsed since Plaintiff's prior disciplinary action, and the Committee's experience and ability to disregard irrelevant information.

The court noted that the Committee had carefully applied the correct test, explicitly rejecting any gloss or modification, including the disputed "consciously or unconsciously" phrasing. The legal assessor's role and advice were scrutinized, with the court observing that while the assessor's formulation caused confusion, the Committee was aware of the issue of unconscious bias and considered it appropriately.

The court emphasized the special features of the regulatory tribunal, including the presence of legally qualified members and legal assessors, which mitigate the risk of prejudice from extraneous publicity. The court also distinguished cases involving apparent bias affecting tribunal impartiality from cases of prejudicial publicity that do not necessarily undermine fairness.

Regarding the refusal of adjournment, the court acknowledged the Committee's legitimate concern to avoid undue delay but found that the Committee underestimated the practical necessity of counsel's involvement in promptly pursuing judicial review. The refusal compromised the appearance of fairness by limiting Plaintiff's ability to challenge the Committee's decision effectively.

The court considered relevant authorities discouraging judicial review applications during proceedings but found the circumstances of this case—early in a multi-day hearing with significant legal questions—justified a limited adjournment to preserve justice and the appearance thereof.

Holding and Implications

The court delivered a split decision:

The appeal was dismissed on the first issue: The Committee's refusal to discharge themselves did not breach the rules of fairness or natural justice. The decision was consistent with the correct legal test for bias, and the Committee was capable of fairly deciding the case despite exposure to prejudicial publicity.

The appeal was allowed on the second issue: The Committee erred in refusing a limited adjournment to enable Plaintiff to apply for judicial review. This refusal was contrary to the interests of justice and the appearance of fairness.

The proceedings before the Committee will continue before a newly constituted panel advised by the legal assessor. The court refrained from commenting on practical issues arising from the delay or the conduct of the resumed hearing. The Committee must be clearly instructed to decide solely on admissible evidence and disregard any prejudicial publicity, including reference to the 1987 disciplinary decision.

No new precedent was established. The decision primarily affects the procedural handling of this case and underscores the importance of balancing expedition with fairness in tribunal proceedings.