GOC: Panel Member’s Failure to Recuse
16 August 2023
Findings of a Fitness to Practise Committee of the General Optical Council (GOC) of misconduct, impairment and erasure from the register against a student dispensing optician, were quashed in the High Court: Suleman v General Optical Council [2023] EWHC 2110 (Admin) Chamberlain J
It was alleged that the student had carried out restricted activities as a dispensing optician at the Huntingdon and St Ives’ branches of Specsavers whilst unregistered including a charge that she had dishonestly given her employers a false registration number in order to conceal that she was not yet fully qualified.
At the appeal hearing her counsel, Marc Beaumont, focused almost exclusively on the second ground of appeal which asserted that the Committee’s decision was vitiated by bias because one of its five panel members, Simon Pinnington, had a connection to Specsavers which gave rise to apparent bias.
That connection was disclosed (but not drawn to the attention of the unrepresented appellant) at the beginning of the third day of the hearing when Mr Pinnington observed that he had held a position at Specsavers for 25 years but resigned from that three years ago when he retired.
It first came to the attention of the appellant when it was discovered “purely adventitiously” by Mr Beaumont when preparing the grounds of appeal. It was further revealed that Mr Pennington from 2019 onwards was a locum dispensing optician at a number of Specsavers’ practices, working 110 days in 2019-2020, 46 days in 2020-2021 and 73 days in 2021-22.
There were two stages to the determination of an allegation of apparent bias: (1) the relevant circumstances must be found; (2) would those circumstances lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased: Porter v Magill [2002] 2 AC 357. The fair minded observer was neither complacent nor suspicious: Belize Bank Ltd v Attorney General of Belize [2011] UKPC 36, [36] (Lord Kerr)
There was an earlier line of authorities which identified situations in which a judge or other decision maker whose activities were governed by public law was automatically disqualified on grounds of apparent bias. This was so where the decision-maker was himself a party to the proceedings. Similarly, he would be automatically disqualified where he had a personal or pecuniary interest in the outcome, however small: Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759.
In re Medicaments and Related Classes of Goods (No 2) [2001] 1WLR 700 was a case where the tribunal member had no pecuniary interest in the result but apparent bias was made out for two reasons: (i) the tribunal had to resolve a fundamental conflict of economic analysis between rival economic consultancy firms and one of its members had during the proceedings applied for employment with one of those firms; (ii) the tribunal member ‘might still harbour hopes that, sooner or later, she might find employment with this firm’ and ‘this might induce in her, consciously or unconsciously, a reluctance to reject as unsound evidence advanced by the firm’s experts.’
In the present case, Mr Pinnington’s relationship with a particular branch of Specsavers was both substantial and long-lasting which might have aroused some concerns even if it did not give rise to a real possibility of bias. But the relationship arising from his work as a locum was, in the court’s judgement, more significant. In a sense the relationship with Specsavers was ‘ongoing’.
In his Lordship’s judgment, the fact that Mr Pinnington entertained the hope to obtain more centrally allocated locum work from Specsavers would lead the fair-minded and informed observer to conclude that there was a real possibility that, consciously or unconsciously, he would be disposed (i) to find substantiated complaints advanced to the GOC by those managing Specsavers branches that the appellant had engaged in conduct likely to injure the reputation of Specsavers and/or (ii) to resolve evidential disputes in favour of those individuals and against the appellant.
The position was akin to that of In re Medicaments. If anything, a dispute of fact turning on the assessment of the credibility of witnesses was more likely to engage concerns about apparent bias.
Mr Pinnington should have recused himself. The Committee’s decision was not saved because he was only one of three members. A panel which sat for ten days, as this Committee had, would be bound to have discussed the case in detail. If one member was tainted by apparent bias, the Committee’s decision would be vitiated.
The appeal was allowed and remitted to the GOC for hearing before a differently constituted Committee.