On 31 December 2015 substantial changes to the GMC’s Fitness to Practise Rules (“the Rules”) came into force. These include:
- Enabling the MPTS to draw adverse inference or refuse to admit evidence;
- The power to award costs;
- GMC’s right to appeal
- Reviews on the papers,
- Non-compliance hearings
- Removing the “exceptional circumstances” element of the five year rule.
Under Rule 16A where a party fails to comply with the Rules or a direction then the tribunal may:
(a) draw adverse inferences;
(b) refuse to admit evidence where the failure relates to the admissibility of that evidence; and
(c) award costs.
These powers apply to all proceedings other than interim order or non-compliance hearings.
In determining whether to draw an adverse inference or refuse to admit evidence MPTS guidance states a tribunal should consider:
- Whether there has been a failure to comply with a rule or direction;
- Whether this amounts to a culpable failure;
- If so, whether the failure to provide evidence has left the tribunal unable to assess the quality of that evidence or determine what it means in the context of the case as a whole;
- Whether the failure has caused a real, tangible unfairness in the proceedings;
- Whether the failure to provide evidence was in bad faith. If the tribunals considers the party was seeking to keep unfavourable material away from the tribunal or to conceal the truth from it then an adverse inference could be appropriate.
The purpose of drawing an adverse inference is to ensure that a party cannot secure an unfair advantage by hindering the tribunal’s full and unfettered examination of the relevant evidence and issues in the case.
An adverse inference should only be drawn where there can be no other reasonable explanation. In all likelihood the emphasis on bad faith will make the use of adverse inferences very rare.
The guidance cites the following examples of an adverse inference:
- Failing to produce evidence without reasonable excuse may lead to an inference that it was not produced because it would be unfavourable.
- If the GMC fails to produce evidence by a certain date and then, in the absence of an adequate explanation, later gives this evidence and the evidence appears to have been altered the tribunal may conclude that the evidence, before alteration, was unfavourable.
The tribunal will refuse to admit evidence “only where absolutely necessary” given that it is described in the guidance as a “draconian step”. Factors relevant to the exercise of this judgment include:
- Has the party deliberately sought to disrupt proceedings by the manner or timing of the production of the evidence?
- Will the other party be prevented / significantly disadvantaged in addressing the material issue raised by the evidence.
- Whether any other mechanism may allow the hearing to proceed fairly e.g. adjournments.
Given that it must be absolutely necessary to exclude the evidence to preserve the fairness of the hearing the use of this power will also be exceedingly rare. It is perhaps more likely that a tribunal will adjourn and award costs rather than exclude evidence.
The MPTS may now award costs under Rule 16B if a rule or direction has not been complied with and the conduct of the paying party was unreasonable and, as a result, time or money has been wasted.
MPTS guidance encourages the tribunal to consider whether the party in question has engaged in:
- Conduct designed to frustrate the process;
- Uncooperative/obstructive conduct for which there is no reasonable excuse;
- Behaviour which jeopardises the fairness of proceedings;
- Pursuit of a case known to be dishonest;
- Evasion of rules intended to safeguard the interest of justice.
The guidance goes on to state that delay, absent other features, is not enough to amount to unreasonable behaviour.
The tribunal will consider the question of costs at the conclusion of proceedings although the behaviour which gives rise to an application should be highlighted immediately. The tribunal should not take into account the ability of the party to pay, that will be considered by the Case Manager when assessing the amount payable. Guidance has been produced by the MPTS on the assessment of costs which sets out guideline rates and caps on the amount of costs recoverable.
The schedule of costs claimed must be served within 28 days of the conclusion of proceedings in which the award was made. The paying party then has 28 days to respond in writing to the schedule of costs including evidence on their ability to pay. Unless otherwise specified the paying party must pay the award within 14 days.
Section 40A of the Medical Act 1983 enables the GMC to appeal a relevant decision (set out at section 40A(1)). When considering whether to appeal such a decision the GMC must consider:
- Whether the decision is not sufficient for the protection of the public; and, if so,
- Whether it should exercise its right of appeal in respect of that decision.
S.40A(4)) makes clear “the protection of the public” includes not only the safety of the public but also the maintenance of public confidence and maintaining proper professional standards.
According to the guidance, this issue will turn in most cases upon the sufficiency of the ultimate sanction. An inappropriate sanction, however, may be a product of a mistake at the facts or impairment stage. Such findings may then be appealed The GMC before launching an appeal will ask itself: “would exercising the power of appeal further, rather than undermine, the achievement of the over-arching objective?”
Any appeal will be subject to Part 52 of the Civil Procedure Rules. i.e. was the decision wrong or was there a serious procedural irregularity. The GMC suggests in its guidance that the criteria applied by the High Court in considering appeals by doctors against the finding of a tribunal should, and will, apply to appeals brought by the GMC as well.
It is worth noting that a reference by the Professional Standards Authority under section 29 of the National Health Service Reform and Health Care Professions Act 2002 can only be made where the decision is “unduly lenient”. The words unduly lenient – and the high threshold they denote – do not appear in section 40A.
Review on the papers
Where both the doctor and the GMC agree on the proposed outcome of a review hearing, a legally qualified chair (“LQC”) will, in most instances, review these papers and make a decision as to whether the agreed outcome is sufficient to protect the public. The LQC will either agree the terms, or if the LQC is not satisfied that the agreement sufficiently protects the public or has doubts as to the doctor’s capacity to agree to the proposed action will decide that a full hearing should take place.
The new Rule 17ZA introduces non-compliance hearings. This is a new type of MPTS hearing to which the GMC will be able to refer a doctor if they, without good reason, do not comply with a request for information or a request to undergo a health, performance or English language assessment.
The MPTS guidance suggests that the doctor’s non-compliance must be one that would significantly impair the GMC’s ability to investigate concerns.
When considering whether the doctor has failed to comply the MPTS guidance suggests that this will only be found where the doctor has received three reminders. Having failed to respond to a request within the allowed time period the doctor will then be sent a reminder and given 14 days to respond. If there is still no response the doctor will be sent a final reminder with 7 days to respond before a referral to a non-compliance hearing can be made.
If the doctor has, without good reason, not complied with a reasonable direction the tribunal will be able to take no action, impose conditions for up to three years or suspend the doctor for up to 12 months. The guidance states that some action against the doctor’s registration is likely to be necessary.
Conditions might be appropriate where the doctor has provided some mitigation for non-compliance that is short of providing a good reason but satisfies the tribunal that conditions are sufficient. In the absence of mitigating information conditions are unlikely to be appropriate. The tribunal may direct that a doctor’s registration is to be conditional on their compliance with a specific direction within a specified period of time.
Any restrictions imposed by a tribunal may be subject to a review hearing. If, on such a review, the doctor continues to refuse to comply, after being suspended for two years, the tribunal will be able suspend the doctor indefinitely. A doctor cannot be erased for non-compliance. A doctor may request a review after two years has elapsed from the date when the indefinite suspension took effect.
The question of impairment does not arise in a non-compliance hearing. The tribunal will make a finding of fact in relation to compliance and then, if non-compliance is proved, consider the appropriate direction.
Five year rule
The GMC may now consider cases more than 5 years old if it is in the public interest to do so. There is no longer any requirement of “exceptional circumstances”
The changes are potentially hugely significant. The guidance documents produced do not give a clear indication of the approach that will be taken by the GMC and the MPTS. Rather they simply provide the framework that will be followed. The practical effect of many, if not all, of the changes will depend to a large extent on the attitude of the GMC and the MPTS to these new powers. For now the future is uncertain.