The General Medical Council (GMC) Consultation entitled ‘The future of adjudication: making changes to our fitness to practise rules and our constitution of panels and Investigation Committee rules’, which ran from 14 May 2012 to 6 August 2012, provoked a massive response from those in the health and social care regulatory world. Its stated aim: ‘to make the pre-hearing and hearing procedure shorter, reducing the stress for all involved’ and ‘to make the Rules simpler and more flexible’ (GMC Fitness to Practice Consultation). One large step towards those wide ranging changes was made today as the General Medical Council (Fitness to Practise and Constitution of Panels and Investigation Committee) Amendment Rules 2013 come into force, making various and important changes to the Fitness to Practise Rules 2004.
The substantive changes are as follows;
New powers for case managers
- Rule 16 gives Case Managers an express power to issue directions as to joinder and, where the parties agree, that the oral evidence of a witness is to be given by means of a video or telephone link. They are also empowered to direct that a witness is to give evidence in-chief by way of oral evidence (see further below – evidence);
- The decision as to whether to cancel a hearing before the start will be made by a Case Examiner rather than a Committee Member (Rule 28)
- Rule 29 relating to postponements and adjournments is amended so that a Case Manager may, of their own motion or upon the application of a party, postpone the hearing until such time and date as they think fit;
- Panellists are enabled by virtue of the amended Constitution of Panels and Investigating Committee Rules, to sit on review hearings, IO hearings and restoration hearings. Panellists may now also act as a Case Manager;
- Provision is made under the new Rule (9)(5) for the replacement of Panel members in part heard hearings. This means that where hearings are adjourned and then re-listed, if there are difficulties assembling the original Panel, there is a broad discretion to make any necessary directions ‘in the interests of justice’.
- The requirements of the Notice of Hearing for Interim Order and Review Hearings are changed. Previously the Notice was required to ‘particularise the allegation against the practitioner and the facts upon which it is based’. Under the amended Rule 26(2)(a) it must simply ‘inform the practitioner of the allegation and the facts upon which it is based’;
Procedure at the hearing
- Rule 17(2)(c) removes from the Panel Secretary the task of reading out the allegation and the facts upon which it is based at the start of the hearing, requiring the Presenting Officer to state instead whether there are any proposed amendments to the particulars;
- Rule 17(2)(g) is amended such that half time submissions on there being no case to answer will be limited to the fact-finding stage and not the question of impairment;
- With reference to preliminary legal arguments, previously, pursuant to Rule 30, a Committee or Panel would be bound by any determinations by a previous Panel on a point of law, unless it had been ‘wrongly decided’. As amended, they are not bound by such a decision if ‘there has been a material change in circumstances and that it is in the interests of justice to reconsider the matter’ or ‘it is otherwise in the public interest to do so’. The circumstances in which a Panel or Committee can depart from a previous Panel’s determination are thereby widened;
- Rule 11 is amended so that on consideration by a Committee as to whether it is appropriate to give a warning in a particular case, oral evidence may only be called by either party if the Committee considers such evidence is necessary to enable it to discharge its function;¹
- Rule 37 is amended so that responsibility for writing the decision and the reasons for the decision and providing it to the Registrar is moved from the Panel Secretary to the Panel or Committee;
- In relation to evidence, Rule 34(2), which stated that evidence that would not be admissible in criminal proceedings in England shall not be admitted unless, on the advice of the Legal Assessor a Committee is satisfied that its duty of making due enquiry into the case makes its admission desirable, is removed completely. Therefore a Panel may now admit any evidence it considers fair and relevant to the case before it, whether or not it would be admissible in a court of law;
- Rule 34(9) is amended so that parties are required to list/provide copies of the documents they will be relying upon at least 28 days before the start of the hearing and to notify the other side of the witnesses they require for cross examination within 14 days of receiving that list. Further, by virtue of the new Rule 9(B), if a party wishes to apply for a witness to give oral evidence in chief they must notify the other parties at the same time as providing their list of documents. They must give reasons for the intended application;
- Rule 34(11) is substituted for a new provision which states that a Committee or Panel must receive into evidence a signed witness statement containing a statement of truth as the evidence-in-chief of the witness concerned unless the parties have agreed, a Case Manager has directed or a Panel decides (either upon an application of a party or of its own motion) that the witness concerned is to give evidence-in-chief by way of oral evidence;
- Applications to allow witnesses to give evidence by video link can be made at any stage but can only be granted if the Panel considers it to be in the interests of justice, taking into account any agreement between the parties and/or a Case Manager’s direction. (Rules 34(13) and (14));
The new rules plainly enact significant changes and the effects will be felt both at first instance and in the Administrative Court. The intention behind the changes was clear; the creation of a more streamlined and efficient process causing a reduction in the length of hearings and a foreshortening of the procedure for dealing with preliminary matters. Whilst hearings certainly look set to shorten as a result of these changes, one has to wonder at what expense? The move towards witness statements being taken as evidence-in-chief and towards the adoption of the civil rules of evidence is seen by some as an erosion of the important safeguards in place to protect practitioners from serious and often career-ending allegations. Speed and efficiency should never trump the interests of justice; we await the inevitable stream of challenges with interest.