Judgement date: 10 July 2013

High Court quashes Fitness to Practise Panel’s (“FTTP”) decision to hear the whole of the General Medical Council’s (“GMC”) case against the Claimant in private on the basis that the GMC had failed to discharge its burden of proof for the need for any derogation from the default position of a right to a public hearing under Article 6 or for a need to derogate to the extent claimed.

The Claimant, a consultant psychiatrist, appealed against a decision of the FTPP to hear the whole of the disciplinary proceedings in private following an application by the GMC under Rule 36 (2) or Rule 41 (2) of the GMC (Fitness to Practise) Rules 2004 (“the Rules”).

The Claimant faces allegations of financial impropriety made by Patient A, the principal witness in the GMC’s case. The basis for the GMC’s application was that Patient A had asserted that he would not be prepared to give evidence unless the whole hearing is conducted in private. The FTPP determined in accordance with Rule 41 (2) that the hearing would be held in private since ‘the particular circumstances of the case outweigh the public interest in holding the hearing in public’. The determination of the FTPP (delivered in private) concluded in essence that the principle witness against the Claimant, Patient A, had asserted that he would not be prepared to give evidence unless the whole hearing is conducted in private and that apparently Patient A does not consider a direction that his name be anonymised to ‘Patient A’ and that he could give evidence from behind a screen would be sufficient protection. This was not tested at the hearing because Patient A was not called by the GMC to give evidence before the FTPP. Further there was no evidence before the FTPP that established an objectively reasonable foundation for the position apparently taken by Patient A.

The FTPP concluded that the hearing ought to be in private because to do otherwise would probably result in Patient A not giving evidence at all [emphasis added] and that the Claimant would not be prejudiced in any way given his Counsel could still test the evidence and make submissions at the final hearing.

Patient A suffers from a mental health disorder that is currently in remission. During the application hearing, Patient A was not made available to give evidence and be cross examined, nor was any evidence adduced from Patient A to indicate the reasons or circumstances surrounding the initial assertion or to enable a proper assessment to be made regarding his true intention. The only evidence (admissibility of which was questionable) as to the reasonableness of Patient A’s position is the evidence from a Dr Bunn whose view was that Patient A’s position is driven by his personality and not any medically diagnosable condition. His evidence concluded that objectively, Patient A’s concerns could be allayed by anonymity and use of a screen. No evidence was produced to explain why such measures would afford insufficient protection for Patient A’s concerns.

In essence, the two issues for the Court were whether it was open to the FTTP to conclude that the GMC had established whether Patient A held a sufficiently settled intention not to give evidence unless the hearing was in private and whether such a settled intention would objectively justify a decision to hold the entire hearing in private.

In relation to the first issue, the Court held that the FTPP erred in their decision at the very outset by not reminding themselves of the default position under Article 6 that the hearing should be in public and of the resulting rights of the Claimant, as outlined in the case of R v Legal Aid Board ex parte Kaim Todner [1998] EWCA Civ 958 [1999] 1 QB 966. The Court held that the onus rested on the GMC to prove the need for the derogation sought from this default position. By not producing Patient A, the GMC failed to demonstrate the validity of Patient A’s assertion that he would not give evidence unless the whole hearing was in private. No opportunity was afforded to the Claimant or the Panel to explore with Patient A other mechanisms of giving evidence which could allay any concerns he had and which would result in a less extreme and more proportionate derogation from Article 6. At best, the evidence presented by the GMC was from Dr Bunn, who stated that Patient A’s wish for the hearing to be in private was his ‘preferred option’. The Court held there was no evidence from which the Panel could be satisfied that Patient A would not give evidence and this was an insufficient basis for derogating from the Claimant’s Article 6 right to a public hearing.

The Court stressed the important of the Claimant’s interest in having the hearing heard in public and should not have been mitigated against by reference to his ability to test the GMC’s case in his defence. The Court reinforced the reasons for this right which were set out in R v Legal Aid Board ex parte Kaim Todner, namely deterrence of inappropriate behaviour of the tribunal and minimisation of inaccurate comment about the proceedings, and emphasised that it was critical that they were identified before any derogation from them could be considered.In any case, the GMC also failed to prove that there was objective justification for the position adopted by Patient A.

This case demonstrates that FTP Panels should not accept at face value a submission that there is a necessary and proportionate need to have a hearing in private where the regulatory body could and should have established this by evidence. The starting point must always be that encompassed under Article 6; that the hearing should be in public. The onus thereafter rests on the regulatory body to establish and justify the need for the derogation sought.