Practicalities of the Tribunal

BUTTERWORTHS

7th July 2011

Alison Foster QC

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Practicalities of the Tribunal

7th July 2011

Alison Foster QC

Introduction

1. The purpose of this paper is to indicate the framework against which

important practical decisions are made in the conduct of proceedings

in professional tribunals.

2. The framework is constituted by familiar principles of public law

decision-making and the cases decided in the regulatory sphere. The

practical application of those principles should produce for the

practitioner points either of attack or defence, depending on client

need, through the course of the regulatory process.

3. The aim is to set out some of the main supports in that framework of

principle which may be used as the basis for submissions, and

consider some ways they may be used to assist your cases in practice.

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FUNCTION of the REGULATOR, its CONSTITUTION and its POWERS

4. In considering the function of any regulator1 it is a commonplace

always to refer to regulation as “regulation in the public interest”.

5. The public interest includes

(i) The protection of patients and the wider public

(ii) The maintenance of public confidence in the profession

(iii) Declaring and upholding proper standards of conduct

The nature of disciplinary proceedings requires the vindication of the

strong public interest in proper regulation. There are several aspects to

this public interest, one is the interest in the thorough and public

investigation of complaints, another (also correctly expressed as a

public interest) is in the proper regulation of the profession in order to

uphold its standards and to guide its ethical behaviour. There is a

strong presumption in favour of full public process, as articulated by

Lightman J in R v GMC ex parte Toth [2000] 1WLR 2209,

1 The frenzy of policy activity over the last 6 or 7 years has been extreme, following particularly from the Bristol Inquiry, the establishment of what is now CHRE, the Shipman Inquiry, and the considerable governmental interest in the regulation of the professions. See policy documentation including Dame Janet Smith’s fifth Report for the Shipman Inquiry, produced in December of 2004. On the same day as the government’s response to that Report, called “Safeguarding Patients” was published, the White Paper: “Trust Assurance & Safety The Regulation of Health Professionals in the 21st Century”, was published, in February 2007. The report of the Chief Medical Officer had been published in July 2006: Good Doctors, Safe Patients; the Health & Social Care Act received royal assent on 21 July 2008. Early 2009 saw the publication of further reports, consultation papers and draft regulations. See “Tackling Concerns Nationally”, and “Tackling Concerns Locally”, and recently the Review of the Regulation of Public Health Professionals was published in November 2010 on behalf of the DoH. This list is by no means complete.

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“(a) The public have an interest in the maintenance of standards and the investigation of complaints of serious professional misconduct against practitioners; (b) Public confidence in the GMC and the medical profession requires, and complainants have a legitimate expectation, that such complaints (in the absence of some special and sufficient reason) will be publicly investigated by the [PCC]; and (c) Justice should in such cases be seen to be done.”

6. The locus classicus for the pre-eminence of the reputation of the

profession, Bolton v Law Society [1994] 1WLR 512, emphasised that

personal mitigation is not of particularly persuasive weight in a case

involving the reputation of a profession. However, the degree to

which a profession believes its reputation may withstand untruthful

registrants may vary dramatically.

7. Recently in Jeffries Mvenge v GMC [2010] EWHC 3529 (Admin) the

Panel observed that part of their role was to protect the standing of

the medical profession in the eyes of the public and that their findings

of dishonesty (knowingly possessing a false identity document) and

the failure to admit to that conviction on an application for

registration rendered him unfit. The court deferred to the Panel as the

judges of matters affecting the standing of the profession and did not

interfere with the sanction.

8. On the other hand, in Brennan v Health Professions Council (HPC)

[2011] EWHC 41 (Admin), the case of the fake blood capsule

physiotherapist, the registrant had at the manager’s instigation

provided a fake blood capsule to a player and prepared a false

account of events and indeed false statements for the players,

Ouseley J allowed an appeal against strike off. The Court emphasised

there was an important link between unfitness to practise and public

safety, this being a case where there had been no identified risk to

public safety the Committee ought to have analysed and reasoned out

the sanction more carefully. In truth this was a reasons decision, but

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the Court also, in a highly detailed and careful analysis, refused to

decide the issue for itself, and remitted. The judge did not accept that

strike off was necessarily proportionate or necessarily

disproportionate.

9. In that case the court also re-articulated the principle that a sanction

does not constitute a retrospective action. As that panel had said, it is

not punishment for past conduct but it is future action taken in the

interests of – generally- public safety.

10. The solicitors’ profession again provided occasion for the court to

consider the effect of damage to the profession’s reputation as a

whole. In SRA v Dennison [2011] All AER (D) 320 the court gave a

different emphasis and a threefold purpose to the imposition of

sanctions upon solicitors:

Most fundamentally to maintain public confidence

in the solicitors’ profession and its reputation.

Punitive, i.e. in order to punish – if not dealt with by the courts - and also deterrent although this was not the primary intention.

To prevent re-offence.

11. Because sanction was not primarily punitive, personal mitigation was

likely to be of less effect. That was not to say that rights under

Articles 6 and 8 were abrogated. In that case in spite of the passage of

time where there had been entirely deliberate and calculated

concealment of a solicitor’s conflict of interest and there had been

dishonesty over a long period of time, a fine was held inappropriate.

12. It is as well to recall that overarching all particular submissions as to

the conduct of a case is the general proposition that a disciplinary –

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or indeed any other – tribunal in conducting itself during the hearing

must comply with the requirements of natural justice or, in other

words, must act fairly.

The right to a fair hearing: fairness generally

13. Public bodies carrying out functions in the public interest such as

regulatory bodies are under a duty to act fairly. The duty is to fulfil

the requirements of “natural justice”. The ultimate guardian of this

duty is the Administrative Court through the mechanism of judicial

review.2 The content of this duty is sometimes referred to as the

obligation: audi alteram partem.3 The requirement of natural justice

also comprehends the principle “nemo judex in causa sua”,4 or that a

tribunal must act without bias.

14. It is further axiomatic that the rules of natural justice are concerned

with the manner in which the tribunal takes its decision, rather than

whether or not the decision is correct. The duty to act fairly is a duty

that the courts now recognise as imposed in respect of almost all

administrative decision-making processes.5

15. As was said by Dyson LJ:6 when describing the breach of Article 6

fair hearing rights:

“denial of the right to make representations was “not a mere formal or technical breach”. It is a denial of one of the fundamental elements of the right to a fair determination of a

2 See Administrative Law, Sir William Wade & Christopher Forsyth (Oxford University Press 2004). 3 Literally: hear the other side 4 Literally, no-one [can be] a judge in his own cause. 5 By way of example, note the case of R(Port Regis School) v North Dorset DC [2006] EWHC 742 (Admin) [2006] BLGR 696, in which Newman J had to consider the question of whether membership of the Freemasons could give rise to considerations of apparent bias 6 At the Court of Appeal stage of Wright v Secretary of State for Health now at [2009] 1 AC 739.

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person's civil rights, namely, the right to be heard” (para 106).

16. In the Wright case the provisional listing of care workers without a

preliminary hearing was held to contravene procedural fairness

requirements where there was no right to make representations before

a decision although a right existed afterwards.

17. The principle is explained as derived from “the constitutional

principle of the rule of law, which requires regularity, and

predictability, and certainty in government’ dealings with the

public”7 and the principle will insert into a silent procedure (even

absent a human rights argument) basic obligations to hear

representations, notify matters of concern and give reasons for a

decision.8,9

18. What fairness requires will vary from case to case, necessarily the

gravity and complexity of the charges and of the defence will impact

on the context of fairness in any case.10

19. Procedure is therefore the bedrock of a regulatory process. The rule

of fairness is, as a matter of analysis, part of procedural propriety and

directly reflected in Article 6 in so far as it.

Article 6(1) generally

20. It is prudent to remind oneself of the basic text and principles.

7 DeSmith Woolf and Jowell Judicial review of Administrative Action (2008 Edition) 8 R vSSHD ex parte Al Fayed [1998] 1 WLR 763 CA. 9 The overriding requirement of a fair hearing is: “…to place the ‘tribunal’ under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision.” (Kraska v Switzerland (1994) 18 EHRR 188 para 30) 10 See Court of Appeal in Fleurose at paragraph 14.

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21. Article 6(1) provides that:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” (emphasis added)

22. The content of the rights afforded will depend on the nature of the

proceedings in question.

23. In Engel v The Netherlands (1979-80) 1 EHRR 647 the Court

identified three factors relevant to determining whether a given

“charge” vested with a disciplinary character ranks as “criminal”:

Whether the provision(s) defining the offence charged belong to criminal law, disciplinary law, or both, according to the legal system of the relevant state.

The nature of the offence.

The degree of severity of the penalty that the person

concerned risks incurring.

24. The Court stated that criminal matters are those characterised by:

“deprivations of liberty liable to be imposed as punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental”

25. In Wickramsinghe v UK [1998] EHRLR 338 the Commission stated:

“…professional disciplinary matters are essentially matters which concern the relationship between the individual and the professional association to which he or she belongs, and whose rules he or she has agreed to accept. They do not involve the State setting up a rule of general applicability by which it expresses

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disapproval of, and imposes sanctions for, particular behaviour, as is generally the case with ‘criminal’ charges”

26. The Commission noted also that the most severe sentence which the

applicant risked was erasure of his name from the medical register. 11

The Commission continued:

“Each of these sanctions is essentially disciplinary and is directed to protecting the public and the reputation of the medical profession. The fact that erasure is likely to have far-reaching consequences for the individual concerned does not render the penalty ‘criminal’.”

27. In R v The Securities and Futures Authority Limited, ex parte

Fleurose [2001] EWHC Admin 292 the High Court held that, despite

the possibility of the imposition of an unlimited fine, the SFA

disciplinary process did not involve the determination of any criminal

charge. The Court of Appeal12 upheld that finding, approving the

principles stated in Han & Yau v Commissioners of Customs and

Excise [2001] EWCA Civ 1048 [2001] 1 WLR 2253 at para 8 that:

“the first criterion [routinely applied by the Strasbourg court], namely the categorization of the allegation in domestic law, is no more than a starting point for the classification, and is not decisive of the nature of the allegation… Under the second criterion… where the offence is limited to a restricted group, as is generally the case in relation to disciplinary offences, the Court is unlikely to classify a charge under the applicable disciplinary or regulatory code as criminal, at least unless it involves or may lead to loss of liberty…[As to] seriousness of the penalty… [i]t is plain that the imposition of a substantial fine in disciplinary proceedings will not in itself render charges criminal in nature…”

28. In R (on the application of LG) v The Independent Appeal Panel for

Tom Hood School & Others [2010] EWCA Civ 142 the Court of

Appeal considered the application of the fair hearing rights given by

11 He could also have been permitted continued registration subject to conditions, or suspended for a period of up to 12 months. 12 [2002] EWCA Civ 2015

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Article 6 in the context of an exclusion from school.13 The pupil

accused of having a knife, had been excluded on the basis of findings

made on the balance of probability. He argued that his right to a fair

hearing under Article 6 was engaged either because he had a civil

right determined against him, alternatively, a criminal charge had

been decided against him on an inadequate standard of proof.

29. The Court of Appeal held that the case was disciplinary in character

rather than criminal.14

30. The Court reflected that the concept of “civil rights” in Article 6 is

autonomous (Konig v Germany (No 1) [1978] 2 EHRR 170 [88]) and

that Article 6(1) of the Convention applies only to “civil rights”

which can be said on arguable grounds to be recognised under

domestic law (Matthews v Ministry of Defence [2003] 1 AC 1163). It

conducted what it referred to as an “inquiry into the elusive,

autonomous meaning of a ‘criminal charge’ under Article 6.”15 There

were two groups of cases requiring analysis. The first referred to

rules enforceable against all citizens of the state where imprisonment

or fine could result even though there was a domestic non-criminal

categorisation. The second group were those that related to rules

enforceable only against members of a group with a disciplinary or

regulatory character16. Thus a domestic classification of “non-

criminal” will be overridden where proceedings (other than for

contempt of court) are taken in which all citizens are made

potentially subject to imprisonment or fine, and only unless

13 The relevant disciplinary matter in this case would, if proven, have amounted to the commission of a

criminal offence by the child in question. The case also raised questions about the applicable standard of proof

14Importantly, of course also holding that even if there were a right to education recognised under domestic law, that right did not guarantee education at a particular institution , following Ali v Lord Grey School Governors [2006] 2 AC 363 15 Paragraph [21]. 16 Among those, was, of course Fleurose

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exceptionally serious, where in regulatory or disciplinary

proceedings17 there was a prospective consequence of imprisonment

or further imprisonment18.

31. Note also the Court’s repetition of the proposition from In re D

(Secretary of State for Northern Ireland intervening) [2008] UKHL

33, [2008] 1 WLR 1499 and In re B (Children). i(Care Proceedings:

Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009]

1 AC 11. This is to the effect that an enquiry in civil or disciplinary

proceedings into the existence of conduct which would amount to the

commission of a criminal offence does not require application of the

criminal standard of proof. 19

32. As a matter of analysis, part of the concept of procedural propriety

and thus of fairness, the rule against bias is also closely bound up

with the constitution of the regulator.

The rule against bias

33. In R v Bow Street Metropolitan Stipendiary Magistrate ex parte

Pinochet (No 2) [2000] 1 AC 119 the House of Lords considered the

nature of the court’s jurisdiction to set aside its own order where later

disclosures raised questions of the appearance of bias.

34. The principle was stated thus :

17 See R (Smith) v Governor of HMP Belmarsh [2009] EWHC Admin 109 18 See Engel (supra) and Napier v Secretary of State for the Home Department [2004] 1 WLR 3056, a prison adjudication case. 19 In re B the enquiry, which took place in care proceedings, was into alleged sexual abuse of a child by her stepfather. In re D the enquiry, which was conducted by the Life Sentence Review Commissioners of Northern Ireland, was into alleged sexual abuse of two children by their uncle during a period of his release on licence following a sentence of life imprisonment.

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“One of the cornerstones of our legal system is the impartiality of the tribunals by which justice is administered. In civil litigation the guiding principle is that no one may be a judge in his own cause: nemo debet esse judex in propria causa. It is a principle which is applied much more widely than a literal interpretation of the words might suggest. It is not confined to cases where the judge is a party to the proceedings. It is applied also to cases where he has a personal or pecuniary interest in the outcome, however small” per Lord Hope,20 who held: “Senator Pinochet is entitled to the judgment of an impartial and independent tribunal on the question which has been raised here as to his immunity. I think that the connections which existed between Lord Hoffmann and Amnesty International were of such a character, in view of their duration and proximity, as to disqualify him on this ground. In view of his links with Amnesty International as the chairman and a director of Amnesty International Charity Ltd. he could not be seen to be impartial. There has been no suggestion that he was actually biased. He had no financial or pecuniary interest in the outcome. But his relationship with Amnesty International was such that he was, in effect, acting as a judge in his own cause. I consider that his failure to disclose these connections leads inevitably to the conclusion that the decision to which he was a party must be set aside.”

35. In Lawal v Northern Spirit Ltd [2003] ICR 856 the House of Lords

applied the paradigm principles to a part-time judge who had

appeared before lay members with whom he sat: namely: whether a

fair-minded and informed observer, having considered the given

facts, would conclude that there was a real possibility that the tribunal

was biased.

36. They said:21

“The practice whereby Queen's Counsel appointed to sit as part-time judges in the EAT are not restricted from appearing as counsel before a panel of the EAT consisting of one or two lay members with whom they had previously sat in their judicial capacity tended to undermine public confidence in the system and should be discontinued. In determining whether there is bias in terms of the right to a hearing before an impartial tribunal under Article 6(1) of the European Convention on Human Rights or the common law test of

20 @ page 139. 21 4191

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bias, the principle to be applied is that stated in Porter v Magill, namely whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased. The key to this test is public perception of the possibility of unconscious bias. Where counsel appearing on an appeal to the EAT has sat as a part-time judge in the EAT with one or both lay members hearing the appeal, such an observer would consider that it was reasonably possible that the lay member may be subconsciously biased. The observer would likely approach the matter on the basis that the lay members look to the judge for guidance on the law, and can be expected to develop a fairly close relationship of trust and confidence with the judge”.

37. There is also a group of regulatory cases concerned with

independence of the tribunal and impartiality.22 .

38. Regard must be had particularly, to (1) the manner of appointment of

a tribunal’s members and their term of office; (2) the existence of

guarantees against outside pressure; and (3) whether the body in

question presents an appearance of independence. Impartiality means

subjective impartiality (the lack of actual bias), and objective bias

(the lack of the appearance of bias): Langborger v Sweden (1990) 12

EHRR 416 para 32.

39. The test for bias at common law is now effectively identical to that

applied for purposes of Article 6, following the decision in Porter v

Magill [2002] 2 AC 359. As seen above, in respect of the second

aspect of impartiality (described for Article 6 purposes as objective

impartiality, and in domestic law as apparent bias), the test is whether

the circumstances are such that a “fair-minded and informed

observer, having considered the facts, would conclude that there was

a real possibility that the tribunal was biased” (at 494H per Lord

22 In particular In re P (A barrister) [2005] 1 WLR 3019 Preiss v General Dental Council [2001] UKPC 36 [2001] 1 WLR 1926;

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Hope). In the (immigration) case of Helow,23 the House of Lords

considered exactly what attributes the informed and fair-minded

observer should be taken to have.

40. Allegations of bias can arise not only out of the choice of the

member(s) of the tribunal and as a result of the conduct of those

members during the course of the proceedings.

41. Some examples of the conduct of proceedings giving rise to

allegations of bias are:

where the conduct of the tribunal is such as to give a clear indication of a prematurely closed mind as, for instance, where a judge gives the impression of having formed a firm view of one side’s credibility when the other side had not yet called evidence: Project v Hutt [2006] 150 SJLB 702, Steadman-Byrne v Amjad & Ors [2007] EWCA Civ 625;

where a trainee lay member of a tribunal was present with the

chairman where a matter was being deliberated in private, and where laughter was heard to emanate from the chairman’s chambers during those deliberations: Robertson v Hendrie (LTL 8/6/2007);

where medical assessors to the Fitness to Practise Panel of the

GMC retired with the panel to consider their decision, and where they gave their advice in private when they were sequestered with the panel: Watson v GMC [2005] EWHC 1896 Admin; the medical assessors' special relationship with a tribunal made it all the more important that all of their advice was given in the presence of the parties so as to avoid the perception of unfairness or bias. In the instant case the assessors should have been asked to give their advice after the conclusion of the evidence and before submissions.24

42. Problems have arisen on occasion:

23 [2008] 1 WLR 2416 24 The European Court of Human Rights has determined that the mere fact that disciplinary proceedings against professionals are determined by a body which includes members of the same profession does not itself offend the requirement of “independence” in Article 6(1): Stefan v UK.

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where a member of one committee could move backwards and forwards between the committees, albeit not in the same case, it has been found to be sufficient to raise a real risk that the committees do not satisfy the requirement for an independent and impartial tribunal: see R v UKCC for Nursing, Midwifery & Health Visiting, ex parte Tehrani [2001] 1 IRLR 208; approved in Preiss v General Dental Council [2001] UKPC 36 [2001] 1 WLR 1926;

where there is an absence of separate panels for the various statutory committees without overlap between them: see Stefan v UK; Wickramsinghe; Preiss para 20;

where prosecutions take place in the name of the relevant

committee, and might involve considering whether the practitioner charged has complied with the code of conduct made by the committee, may be thought to detract from a committee’s appearance of independence in both of the cases cited above;

where there is no minimum term of office for non co-opted members there may also be a problem for independence.

43. In P (a barrister) v The General Council of the Bar [2005] 1 WLR

3019, it was held that the Disciplinary Tribunal had been constituted

in a way that failed to satisfy Article 6. The defect lay in the

constitution of the panel of five individuals who make up the

Disciplinary Tribunal. Although the President of the Council of the

Inns of Court nominated the persons to make up the panel, in practice

he did so, (at least in relation to the two lay members), by reference

to names put to him as suitable candidates by the Bar Council. In P

one of the lay members was also a member of the Bar Council’s own

Professional Conduct and Complaints Committee (the PCCC). The

court held that: (1) the PCCC had common cause with the Bar

Council in procuring convictions, so the lay member was

automatically disqualified at common law, under the Pinochet

principle; (2) there was apparent bias for purposes of the common

law; and (3) there was a breach of Article 6.

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44. On the other hand, in Holder v Law Society [2005] EWHC 2023

(Admin) the Divisional Court held the Solicitors Disciplinary

Tribunal, which consists of two solicitor members (who are members

of the Law Society, which also, now through the SRA, brings

prosecutions) and one lay member, all appointed by the Master of the

Rolls) to be an independent and impartial tribunal that complied with

Article 6.

45. Sporting bodies should be given as free a hand as possible, consistent

with the fundamental requirements of fairness, to run their own

disciplinary processes without the interference of the courts. In

National Greyhound Racing Club Ltd v Tom Flaherty [2005] EWCA

Civ 1117 the Court of Appeal a suggestion of apparent bias against a

steward (the appellant had been found in breach of the rules of racing

by administering a banned substance to a greyhound) saying the

allegation of bias had to be viewed in the context of the exercise of a

domestic jurisdiction which was inquisitorial in nature and conducted

by stewards familiar with greyhound racing. It had not been good

practice for the chief executive to retire with the stewards, but the

uncontradicted evidence of the stewards was that he had played no

part in deliberations.

46. The approach to submissions on fairness of procedures will always be

heavily context dependent, with sporting bodies at one end of the

spectrum and the traditional professions at the other.

INVESTIGATORY DUTIES

47. There is a commonality in the screening or preliminary stage through

which all regulators determine which matters shall go forward to a

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full public hearing. There are however differences of process: some

regulators involve a screener and a Preliminary Proceedings

Committee, others only the latter. Furthermore, the statutory task is

expressed in various forms of wording.

48. Confusion has arisen25 at this level amongst regulators and it may be

a fruitful source of challenge where the Investigating Committee or

preliminary body is uncertain of its statutory role or paraphrases the

statutory wording under which it is obliged to act obscuring rather

than clarifying its obligations.

49. There is a variety of forms of words used. Generally, a variation on

the phrase “consider whether a question of professional misconduct

arises” expresses the duty. This is effectively equivalent to the

“whether there is a case to answer” formulation common to several

health regulator preliminary committees.

50. In the criminal sphere a submission of no case to answer is made

after the prosecution has called its evidence, which will have been

subject to cross-examination and therefore exposed to the arguments

to be raised on behalf of the defence. The actual evidence on behalf

of the defendant will not have been heard at all by the jury nor tested.

This is really an exercise in seeing what is left of the prosecution case

after it has been tested but here has been no full hearing. A

preliminary Committee is in an obviously different but an analogous

position: it has evidence before it on both sides but that evidence is in

both cases untested.

51. It is only in those cases where no reasonable jury could find that the

prosecution witnesses were giving true evidence that any kind of

question of credibility could arise. One might envisage cases in 25 Not least because of the tendency for the courts to substitute the statutory wordings with reformulations.

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which documentary evidence produced shows that the witness

evidence of one opposing party is unquestionably false. Whilst it is

possible to postulate cases in which the “truth” of the evidence would

be considered, they will be scarce indeed. The test is: is the case for

the prosecution so destroyed so that no tribunal properly directing

itself could conclude in the regulator’s favour?

52. There is a pertinent rationale for such a narrow analysis: the well-

established recognition of the strong public interest in any complaint

against (in particular a health) practitioner going forward and being

investigated in public. (See Lightman J in Toth above.)

53. Even where, as in Toth, there is a double-filter process of screener

and preliminary committee, the court indicates that any preliminary

consideration should be very slow indeed to refuse to refer a case for

a full hearing. Both the complainant and the public are interested in

reassurance that complaints are fully and properly investigated and

that there is no cover-up. Any doubts at all should be resolved in

favour of the investigation proceeding.

54. This is consistent with cases where the courts have given

consideration to the functions of preliminary committees.

55. In Henshall v General Medical Council & Others26 Lightman J’s

conclusion in Toth that the statutory phrase27 “the matters which in

their opinion appear to raise a question whether the practitioner has

committed serious professional misconduct” meant a “real prospect”,

was rejected as a usable test. Sedley LJ stated that the statutory

wording was

26 [2005] EWCA Civ 1520 27Found in the relevant GMC Rules at that time

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“Self-evidently designed only to eliminate complaints which raise no question capable of resulting in a finding of serious professional misconduct. The standard of proof is a relevant consideration. The test does not allow the PPC itself to attempt to answer any question raised by a complaint.”

56. He noted that all the formulations in the decided cases were in fact

paraphrases of the statutory wording. Each paraphrase brought

problems in its wake. By using the phrase “a realistic prospect” in

Toth, further questions arose, for example could a prospect which

was more than fanciful still be less than realistic? To answer that

question was to go even further from the statutory wording. The court

made clear in Henshall28 that it was not part of the task of a

preliminary committee to evaluate the evidence.

57. Further, the only investigation of the substance of the evidence which

is permissible is that which might produce a conclusion that no PCC

properly directed, could make adverse findings upon it to the

requisite standard of proof.

PUBLICITY and PRIVACY

58. The domestic principle that hearings should be in public unless there

is good reason to take another course is a well established one: Scott

v Scott [1913] AC 417, and is (in respect of civil proceedings) now

enshrined in CPR 39.2(2). See also R v Felixstowe JJ ex parte Leigh

[1987] QB 58229 Generally, a court will sit in public unless to do so

would prejudice the interests of justice.

28 See paragraphs [86] to [97] 29 And cases further cited in paragraph 11.181 and ff. Clayton and Tomlinson, The Law of Human Rights Second Edition, Oxford 2009

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59. There is also a qualified right to a public hearing under Article 6(1).

However in Diennet v France (1996) 21 EHRR 554 the European

Court refused to accept that as, a general rule, proceedings before a

medical disciplinary tribunal should be in private. Rather, the proper

approach is to sit in public unless and until a private or confidential

matter came up; at [33], it said:

“This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention.”

60. It follows that any exceptions must be clearly justified30.

61. The rules governing the hearings of disciplinary bodies generally

expressly enshrine the presumption that hearings should be held in

public with power to apply for a private hearing. In L v Law Society

[2008] EWCA Civ 811 at para 41, (a case concerned with an appeal

against a decision of the SRA to revoke student membership), the

Master of the Rolls emphasised the importance of public hearings in

maintaining the confidence of the public in the disciplinary process.

62. In R (on the application of Chaudhari) v Royal Pharmaceutical

Society of Great Britain [2008] EWHC 3190 a challenge was

mounted to the Royal Pharmaceutical Society’s decision that an oral

application to withdraw the Notice of Inquiry should be held in

camera. This was an interlocutory hearing and as such was not

determinative of civil rights and obligations and therefore not

30 See also R v Legal Aid Board ex p Kaim Todner (a firm) [1999] QB 966 and R (Mersey Care NHS Trust) v MHRT [2005] 1 WLR 2469, a decision arising out of Ian Brady’s challenge to the decision of the MHRT to hold his statutory review hearing in public where this principle was in play.

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generally required to be in public.31 As the judge remarked: there are

matters of public interest in all proceedings of a health-regulatory

nature and also in ensuring that all professional bodies behave

appropriately. That does not necessarily mean however, that all

preliminary hearings should be held in public.32

63. The principles governing exceptions to the general rule was

considered in AH v West London MHT [2010] UKUT 264 (AAC) (29

July 2010) in the context of mental health. In that case, of course, the

applicant wished for a public hearing against the general practice of

private hearings.

64. H's motives in seeking a public hearing, and the fact that his evidence

might be "amateurish" or not "objectively sensible" could not in

themselves detract from a right to a public hearing. The inferior

tribunal gave weight to considerations that it should not have, and

that infected its consideration of other more relevant issues, such as

the effect of the proceedings on H's future mental health. The key

issues for a tribunal considering an application for an open hearing

were: (i) whether it was consistent with the subjective and informed

wishes of the applicant, assuming that he was competent to make an

informed choice; (ii) whether it would have an adverse effect on his

mental health in the short or long term, taking account of the views of

those treating him and any other expert views; (iii) whether there

were any other special factors for or against a public hearing; (iv)

whether practical arrangements could be made for an open hearing

without disproportionate burden on the hospital authority.

65. Citing the authorities here mentioned, the Upper Tribunal relied upon

the principle underlying exceptions to the rule of public hearings. It

31 See R v Legal Aid Board ex parte Todner (above). The Court of Appeal recognised the general rule that the administration of justice is required to be in public but the nature of the proceedings is also relevant. 32 At paragraph [10]

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held that the approach of the inferior tribunal appeared to have

diverted attention from the fundamental principle that open justice

was a right, which did not require justification on a case-by-case

basis. On the contrary it was the exceptions that needed to be

justified. They said33

“ However, the Strasbourg case law recognises that the presumption may be reversed for categories of case where this is justified under the exceptions. In B v The United Kingdom [2001] ECHR 298 the court confirmed the validity of a rule that hearings relating to children should be in chambers, unless the court otherwise directs. Two fathers had applied for proceedings relating to residence orders for their children to be heard in open court.. The judge had refused because he did not think it in the interests of the children to be heard in open court. The Strasbourg court confirmed that approach as consistent with Article 6:

“38. … The Court considers that such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment”

Prejudicial publicity

66. Publicity may be in play in other ways. Where elements of a case

become public before a hearing, or during it, considerations that go

also to bias and general fairness arise.

67. In R (On the application of Mahfouz) v The Professional Conduct

Committee of the General Medical Council [2004] EWCA Civ 233

the Appellant, who was a cosmetic surgeon specializing in laser

surgery, challenged a ruling by the Professional Conduct Committee

of charges made against him. His complaint was that four members

of the PCC had seen, in newspapers published after the first day of

the hearing, prejudicial material which would not otherwise have

33 At paragraph [19]

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been in evidence before them. He argued that their failure to

discharge themselves from further hearing the case meant that a fair

hearing was no longer possible.

68. The first article appeared in the Evening Standard, and was headed

“Harley Street surgeon’s ‘botched operations’ left women in agony”.

It also stated that the Appellant “who has already been struck off

once, is facing claims that he sweet-talked patients into signing up for

expensive treatment which left their faces covered in burning sores…

[the Appellant] was struck off in 1987 when working as a GP’s

assistant and failed to refer a patient he knew to be in a critical

condition to hospital.” 34

69. The Court of Appeal held that the law’s response to prejudicial

publicity would vary depending on the nature and experience of the

tribunal concerned. There is no absolute rule that knowledge of such

material is fatal to the fairness of proceedings. The jury is at one end

of the spectrum of tribunals, in that the members will generally have

no previous experience of court procedures and practices; further

along the scale were magistrates.

70. The committee of the GMC included two professionals and three lay

members selected from a panel of persons chosen as having

experience in public life.35

34 Although the facts of the 1987 “erasure” were not disputed, it was common ground that information about the event would not have been regarded as relevant or admissible at the PCC hearing, and would not otherwise have been referred to in evidence. The Metro newspaper also contained an article referring to the fact that the Appellant had been “struck off once before”, and also stated that the Appellant “who claimed to be the only man in Europe able to turn a black person white, was exposed by BBC investigative reporter Paul Kenyon, the General Medical Council was told”. The Appellant denied ever having made such a claim, and that allegation did not form any part of the GMC allegation against him. It would not otherwise have come to the attention of the Committee. 35 The panel included retired judges, justices of the peace, barristers, solicitors, and academics. They can be assumed to understand the proper approach to issues of law and to be aware of the need to disregard irrelevant material.

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71. Of particular importance was the experience of the committee, and

the availability of independent legal advice to ensure that irrelevant

matters do not play any part in their deliberations. Other relevant

factors included the length of time which had elapsed since the

previous finding of serious professional misconduct, the different

nature of the previous case, and the impact of seeing and hearing the

witnesses in relation to the present charges.

72. Other aspects of publicity may distress a practitioner – many desire

that the fact of the complaint against them be kept secret, and that

there be no publication of the results. These arguments do not find

sympathy with the courts.

73. In Deloittes and Touche LLP v Dickinson and others [2005] HC 721

in an action for breach of confidence against regulatory publication of

certain materials pertaining to complaints in a press notice, the

Court, in applying well known principles of the law of confidence,

said that whether one talked in terms of proportionality or balance,

the consistent theme from the authorities was that the court had to

assess whether, in the particular circumstances of the case, the right

of confidence or the right to freedom of expression was the more

compelling.

74. The regulatory scheme (non-statutory) was designed to foster public

confidence in the way in which accountants and auditors performed

their tasks. That explained why disclosure to the public at large was

appropriate.36 The balancing exercise fell in favour of publication of

the press notice with the limited confidential information as it would

ultimately result in it being more accurate and less harmful to D.

36 The confidential information at issue was in fact very narrow in scope and there had already been widespread publicity

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75. In common with all other aspects of the regulatory process, matters of

publication are governed by the general public interest as previously

described.

76. The starting point for any consideration of obligations of disclosure

or potential for privacy must begin with the statute under which the

relevant decision-maker takes its powers.37 There is a generally

discretion, whether express or implied, to withhold any information

concerning the physical or mental health of any person which is

considered to be confidential. There is generally also taken to be a

discretionary power to publish or disclose any information to anyone

where it is considered to be in the public interest.38

77. The obligation to regulate in the public interest, and publicly, will be

taken to override considerations of personal embarrassment or even

potential economic detriment. Subjection to full, fair and public

regulation is considered to be one of the incidents of professional life.

7th July 2011

Alison Foster QC

39 Essex Street London

WC2R 3AT

Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number 0C360005) with its registered office at 39 Essex Street, London WC2R 3AT Thirty Nine Essex Street's members provide legal and advocacy services as independent, self-employed barristers and no entity connected with Thirty Nine Essex Street provides any legal services. Thirty Nine Essex Street (Services) Limited manages the administrative, operational and support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street, London WC2R 3AT

37 For example the GMC is under a statutory duty section 35B(4) Medical Act 1983 to publish in such manner as it sees fit a range of decisions by the Fitness to Practise Panels, Interim Orders Panels etc and certain undertakings greed with doctors. 38 Aside obviously from and subject to any obligations arising under the Data Protection legislation and relevant human rights’ materials.

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