The charges against Dr Radeke concerned clinical failings in relation to three patients and also an allegation that he had given a dishonest account of his treatment of one patient who had died following surgery. It was asserted that he had given differing accounts of his pre-operative assessment of the patient's suitability for intravenous sedation to the investigating officer appointed by the Trust and the Coroner.
The Panel accepted medical evidence that Dr Radeke was unfit to attend the disciplinary hearing. Dr Radeke did not therefore give evidence at the disciplinary hearing, nor did he seek to adduce a formal witness statement. The GDC took no issue in respect of Dr Radeke's failure to produce a written statement and no adverse inferences were drawn.
The Panel concluded that Dr Radeke had given a deliberately misleading account to the Coroner on oath and that he had been dishonest. The Panel determined that Dr Radeke should be erased from the Dental Register. Dr Radeke appealed against the findings of fact, impairment and sanction. In considering the appeal, HHJ Turner stated that the level of deference owed to the Panel's determination was diminished in light of the fact that the Panel did not have the advantage of Dr Radeke giving evidence in person, and so, could not assess his demeanour.
HHJ Turner did not accept that Dr Radeke's evidence to the Coroner had been dishonest. The sanction was quashed and the matter remitted to a new panel to consider sanction afresh.
This case raises a couple of interesting points. On the issue of Dr Radeke's failure to submit a written statement, HHJ Turner commented that he could "envisage circumstances in which a practitioner unfit to attend a hearing would nevertheless be capable of providing a witness statement." In his view, in such circumstances, a failure to produce a written statement could result in adverse inferences being drawn in accordance with the civil case of Wiszniewski v Central Manchester HA  Lloyd's Rep. Med. 223. Generally, regulators, with very few exceptions, have not sought to draw adverse inferences from a registrant's failure to attend or provide evidence to a disciplinary hearing, and whether there is an appetite for change remains to be seen. However, given HHJ Turner's comments, that limited deference is owed to the Panel's determination in cases where the registrant did not hear evidence in person, it is plainly in the interest of regulators for a registrant to attend, and there is no doubt that a registrant would be more likely to do so if there was a risk of adverse inferences being drawn otherwise.