R (on the application of) The British Medical Association v The General Medical Council & Anor [2016] EWHC 1015 (Admin) (04 May 2016)

Background

The current rules governing the procedures of hearings regarding the fitness to practise of doctors registered with the General Medical Council (GMC) came into effect on 31 December 2015.

The rules are contained in the schedule to the General Medical Council (Legal Assessors and Legally Qualified Persons) Rules Order of Council 2015 (the 2015 Assessors Rules) and the General Medical Council (Fitness to Practise and Overarching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015 (the 2015 Fitness to Practise Order).

As is well known, under the 2015 Fitness to Practise Order, Fitness to Practise Panels became Medical Practitioners Tribunals and Interim Orders Panels became Interim Orders Tribunals (referred to interchangeably in this article as tribunals).

Before the introduction of the 2015 Assessors Rules, it was a requirement that legal assessors had to be appointed to every GMC disciplinary panel. However, under that regime, the legal assessor was not part of the panel and did not take any part in the decision-making process.

Any advice given to the panel by the legal assessor had either to be given in the presence of the parties / their representatives, or (in the case of advice given to the panel during their deliberations) provided to the parties / their representatives as soon as practicable. This remains the case after the introduction of the new rules and means that the parties always have a chance to comment on the advice given by an assessor to the tribunal.

However, the 2015 Assessors Rules provide that, if the tribunal chair is legally qualified, there is no longer a requirement for a separate legal assessor to be appointed.

Pursuant to Rule 6(b) of the 2015 Assessors Rules, where advice is given by a legally qualified chair after the tribunal has begun its deliberations on any decision, that advice need be included in the decision only, unless the chair "considers it necessary" (to use the wording of Rule 6(b)) to give the advice in the presence of the parties. This means that, in such circumstances, the parties will not always have a chance to comment on the advice, in contrast with the case where the advice is given by a legal assessor.

Challenge by the British Medical Association (BMA)

The judicial review challenge of the BMA focused on Rule 6(b). It argued that Rule 6(b) was contrary to the requirements of natural justice and the right to a fair trial under article 6 of the European Convention on Human Rights because it deprived the parties of the chance to comment on the legal advice given to the members of the tribunal. In addition, the BMA argued that it was irrational to differentiate between advice given by a legal assessor and advice given by a legally qualified chair.

The arguments of the BMA focused on the contention that, in the case of a legally qualified chair, that individual is carrying out two separate roles: that of a decision-making member of the tribunal and of a legal assessor. The BMA argued that, when performing the function of a legal assessor, a legally qualified chair was bound by the same factors as a legal assessor.

The BMA also argued that the discretion afforded to legally qualified chairs (i.e. to give advice in the presence of the parties if appropriate) was unlawful.

At the hearing, counsel for the BMA accepted that the three grounds of challenge in effect turned on the single issue of whether Rule 6(b) of the 2015 Assessors Rules breached Article 6.

The decision

In rejecting the arguments of the BMA, the learned judge noted that there were many tribunals performing judicial functions where legally qualified members were able to give a view on the law to other members without also making that advice known to the parties. Although, of course, there was still a requirement for those exercising judicial functions to give reasons for their decisions, which included a requirement to set out "any material proposition of law" relied on.

The learned judge then went on to consider whether the framework governing the Medical Practitioners Tribunal Service meant that the tribunals were of a different nature to such tribunals but found that this was not the case. It was found that a legally qualified chair does not have two distinct roles (i.e. as an adviser to the tribunal on points of law, and (separately) as a decision-making member of the tribunal).

The Privy Council case of In re Chien Sing-Shou [1967] 1 WLR 1155, which concerned the Hong Kong Architects' Disciplinary Board, demonstrated that a legally qualified member of a tribunal can advise other members without becoming subject to the jurisprudence attaching to legal assessors.

The 2015 Assessors Rules also make clear that different provisions apply to legal assessors and legally qualified chairs. If the intention had been to make legally qualified chairs subject to the same requirements as legal assessors, it would have been straightforward to do so.

In addition, it was found that the discretion afforded to legally qualified chairs did not necessarily breach the requirements of Article 6. The issue of whether in any particular case Article 6 rights had been infringed was something to be determined on the facts of that case, and it was therefore not the case that the discretion itself was unlawful.

The case of Nwabueze v General Medical Council [2000] 1 WLR 1760 was considered in this regard. In that case, the legal assessor gave advice to the panel during its deliberations, and that advice was not known to the parties until the panel announced its decision. The Privy Council found that, although fairness required that the parties should have had a chance to comment on the advice given to the panel by the legal assessor, determining whether or not there had been an infringement of the right to a fair hearing was fact specific. In Nwabueze, there had been no defect in the advice of the legal assessor, and so the requirements of fairness had not been breached.