The future of adjudication - a paper for consultation

Comments on
General Medical Council
The future of adjudication: making changes to our fitness to practise rules and to our constitution of panels and Investigation Committee rules

The Royal College of Physicians of Edinburgh (the College) is pleased to respond to the General Medical Council’s consultation on The future of adjudication: making changes to our fitness to practise rules and our constitution of panels and Investigation Committee rules.

The College has the following comments on specific consultation questions:

Question 1: Do you agree with our proposal to ensure that witnesses who need to come to a hearing to give oral evidence are told in advance?

1. Yes.
2. In other jurisdictions it has been accepted that witnesses deserve greater consideration than they have had in the past.  It follows that, on balance, doctors should be required to give witnesses due notice that their evidence will be called for. If by some chance evidence was led that surprised the doctor and which might be rebutted by calling a witness who he/she had not listed for the hearing, the amended rules should make provision for the doctor to be able to request that the witness be called, even if that means an adjournment of the hearing.
3. There is no reason to believe that such a change would have a differential impact on persons within a protected group.

Question 2: Do you agree with our proposal to remove the need for written allegations to be read out at the start of a hearing?

1. Yes.
2. It is widely accepted that this is an unnecessary delay: over three quarters of those consulted on this last year favoured the change.  The only disadvantage to not reading out the allegations is that some of those attending the hearing will be unclear that the preliminaries are over.  The way to solve this is to intimate orally to all those attending the hearing when the allegations have been finalised, and to make written copies of the finalised  allegations available to all interested parties attending the hearing as soon as practicable.
3. There may be a differential impact on protected groups.  The Chairs and case managers should be expected to work closely with unrepresented parties to ensure that they understand both the allegations against them and any proposed amendments to these allegations.

Question 3: Do you agree with our proposal to routinely accept written witness statements as evidence-in-chief?

1. Yes.
2. This proposition makes eminent sense and was overwhelmingly accepted in the earlier consultation. Having the routine evidence presented in writing does not prevent the witness from being cross-examined on all salient matters to establish their credibility.
3. The protective measures suggested in the consultation paper should prevent any differential impact of this reform on groups with a protected characteristic.

Question 4: Do you agree with our proposal to allow applications to a committee or panel for witnesses to give evidence by video or telephone when both parties agree?

1. Yes.
2. Permitting video or telephone evidence is in line with the practice in civil cases.  Provided both parties have to agree there seems no reason why this should not be permitted.
3. Again, provided chairs and case managers explain the position fully to unrepresented parties, to ensure informed consent, there seems no reason why such a proposal should have a differential impact on groups with a protected characteristic.

Question 5: Do you agree with our proposal for substituting panellists if they are unavailable to continue the hearing?

1. Undecided.
2. There are good reasons why the panel hearing a case should remain the same throughout (similar to a judge hearing a civil litigation), since if there is a debate at the end of the case about the credibility of a witness who gave evidence before the make-up of the panel was changed, only the two original panellists would be able to contribute to that aspect of the decision.

   It is unclear whether this proposed change is intended to relax the rule that always provides for a lay and medical panellist and which may be challenged.  Could there be differences in process and outcome between a panel comprising a medical chair and 2 lay panellists and a lay chair sitting with 2 medical panellists?  In the above example there is a risk that substitution could leave the panel with no lay or medical member who has participated throughout.

   The exact point of substitution during the process of presentation of a case would be critical, unless the hearing had been video-recorded in its entirety up to that point, in which case the substitute panellist could review the entire preceding proceedings prior to resumption of the case.

Question 6: Do you agree with our proposal to give a doctor all the relevant information we have gathered so far for an interim orders panel hearing?

1. Yes.
2. This proposal is acceptable provided it is read and understood as set out in the question. This means that all relevant facts known at the time of the interim orders panel and relating to an allegation must be made available to the doctor prior to the interim orders panel.  It must also set out an allegation with sufficient specificity for the doctor to know what case is being made against him/her at the interim orders panel.  Vague allegations of unfitness would not be acceptable.  The allegations must be prima facie sufficient to justify an interim intervention and order, accepting the need to protect public safety.

Question 7: Do you agree with our proposal to make a single case examiner responsible for deciding whether all or part of an allegation that has been referred to a hearing should be cancelled?

1. Yes.
2. This seems a proportionate proposal - especially if the decision to bring a case to a hearing in the first place comes from a single individual.  Provision should be made for the Case Examiner to be required to make public the details for his/her decision in each case.

Question 8: Do you agree with our proposal to make decisions on preliminary legal arguments binding unless the circumstances of a case have materially changed?

1. Undecided.
2. It is unclear from the consultation paper that this issue has caused much of a problem in practice.  Unless such evidence is forthcoming, this proposal should be rejected.  If a subsequent panel forms the view that an earlier panel got a decision on a preliminary legal argument fundamentally wrong there seems no good reason why they should be prevented from reversing that decision.

Question 9: Do you agree with our proposal that submissions about impairment should be made at the impairment stage of a hearing after the panel has decided which facts are proven?

1. Yes.
2. This is entirely appropriate and corrects an anomaly in the process hitherto.  It should not disadvantage the doctor.

Question 10: Do you agree with our proposal to remove the current requirement for the Investigation Committee to consider desirability when receiving written evidence and to clarify that it will only receive oral evidence if this is necessary to make a decision?

1. Yes.
2. Seems reasonable.

Question 11: Do you agree with our proposal to clarify that we won’t disclose complaints that we have closed following our initial assessment because we have decided they do not raise a fitness to practise concern?

1. Yes.
2. There are arguments either way in relation to this.  If a complainer simply misunderstands what is a matter pertaining to medical fitness, the case for mandatory disclosure seems not to have been made out.  However, if the details of the complaint could be used on a subsequent occasion to demonstrate a pattern of issues, then there may be a case for disclosure of the original complaint.

Question 12: Do you agree with our proposal for chairs to be involved in case management of hearings?

1. Yes.
2. The proposals here make sense and are in line with what occurs in civil litigation. However, involving the chair in case management if he/she is the only lay or medical member of the panel (see Q.5 above) may influence views or add a disproportionate burden to the role of the chair.

Question 13: Do you agree with our proposal to allow case managers to issue a direction on joinder to strengthen pre-hearing case management?

1. Yes.
2. Seems reasonable.

Question 14: Do you agree with our proposal to make case managers responsible for deciding when to postpone a fitness to practise panel hearing when the MPTS has been established?

1. Yes.
2. Seems reasonable.

Question 15: Do you agree that our committees and panels should admit evidence that is fair and relevant to the case?

1. Undecided.
2. The consultation is unclear as to what practical difference this will make.  There was significant disquiet voiced when the standard of proof was reduced from beyond reasonable doubt to the balance of probabilities, and it would be important to be clear about the legal status of all evidence brought before the panel.