Tactical Approaches to Preliminary Issues in Regulatory Proceedings: Special Measures Applications

Regulatory proceedings frequently involve procedural issues that can shape both the fairness and overall trajectory of a hearing.

Getting the approach to preliminary issues right can potentially avoid disputes before a Committee and impact on the outcome for the registrant.

A key consideration is often how to approach the issue of vulnerable witnesses and when to seek, or oppose applications for, special measures. This article examines the key tactical issues that arise at this stage of healthcare regulatory proceedings, with reference to the General Medical Council Fitness to Practise Rules 2004 (“the GMC Rules”) and parallel frameworks used by the General Dental Council, General Optical Council and Health and Care Professions Council.

Who may qualify as a vulnerable witness?

Under Rule 36(1) of the GMC Rules, certain categories of witnesses may be treated as vulnerable where their ability to give evidence could be adversely affected. This includes:

• Witnesses under 18
• Individuals with a mental disorder (per the Mental Health Act 1983)
• Witnesses with significant impairments in intelligence or social functioning
• Witnesses with physical disabilities necessitating support
• Alleged victims in sexual misconduct cases
• Witnesses who complain of intimidation

Other healthcare regulators adopt a similar approach. Either party may apply for special measures. They are not reserved for the prosecution witnesses. Defence practitioners should therefore consider the need to make a special measures application if the registrant is potentially vulnerable and may not be able to give their best evidence without adjustments being made. This can include registrants who are neurodivergent. 

Crucially, meeting the definition of a vulnerable witness does not guarantee the granting of special measures. An application must still be made, considered, and either agreed by the parties or determined by a Case Manager or panel. If disputed, there is scope for the application to be heard by a separate panel at a preliminary hearing before the substantive hearing takes place. Alternatively, in some forums, the matter may fall to be dealt with at the outset of the hearing. 

What special measures are available?

Rule 36(3) of the GMC Rules provides a non‑exhaustive list of measures. Regulators can in theory adopt any reasonable adjustment they consider necessary to accommodate a witness. Common examples include:

• Giving evidence via video link
• Using physical screens to obscure the practitioner 
• The witness (or practitioner) switching off their camera during evidence
• Giving evidence from a separate room
• Intermediaries or communication support
• Adjusted questioning styles

In practice, the most frequently encountered measures involve a witness giving evidence remotely or obscuring visual contact (by way of screens, having the registrant sit in a certain place during the hearing or having the registrant or witness turn their camera off if the hearing is remote). This often arises in cases involving allegations of sexual misconduct and such applications should  be approached sensitively.

Applying for special measures

Once a case is referred to a hearing, each regulator undertakes a period of case management, usually involving one or more teleconferences. One of the earliest case management questions will be whether either party intends to apply for special measures, so the issue should be raised well in advance of the hearing.

That said, it is not uncommon for these applications to be made at the hearing itself. In those circumstances, the advocates will make submissions, and if the application is opposed, the Tribunal will be required to make a determination.

The opposing party must indicate whether they consent or object and, in the latter case, must explain the basis for their objection.

Should the Defence agree or challenge an application?

Defence teams should not automatically consent to special measures. Instead, each application must be assessed carefully. This is often the most nuanced question and requires case-specific analysis rather than a default stance.

When agreement is sensible

There are circumstances in which it is likely to be appropriate to consent to the application:

• Where there is clear evidence of a mental health condition or physical disability which would impact on the witness giving their evidence. 
• Where the allegations involve inherently sensitive subject matter and objecting to the application could risk demonstrating a lack of insight (although see comments below regarding assessing credibility).
• Where refusing would risk the witness becoming distressed whilst giving evidence, increasing the impact of their evidence in circumstances where there may be limited challenge in terms of the content of their evidence. 
• Where the witness’s credibility is not in dispute and the measure will not hinder the Tribunal’s assessment of their evidence, for example where the case concerns clinical as opposed to conduct allegations and there are limited factual disputes.  

Opposing a reasonable request, particularly from a complainant in a sexual misconduct case, can potentially appear obstructive or lacking in insight and could impact on the way in which the Tribunal view the registrant.
A practical early step is to ask the regulator whether the witness personally requested the measure and what evidence is relied on in support of the application. 

When opposition may be justified

There are also circumstances in which the defence may need to challenge an application, for example, where:

• Credibility is central and the defence intends to challenge the witness’ reliability in cross-examination. Remote evidence or lack of visual contact can hinder the Tribunal’s ability to observe the witness’s demeanour. In “he said/she said” cases, it may be desirable for the defence to be able to observe the witness’s body language during cross examination.
• The application appears tactical, unsupported by evidence, unjustified or disproportionate to the allegations.
• The defence has deliberately requested an in person hearing to allow the practitioner to build rapport with the Tribunal, something which could be undermined by screens or physical separation.

Where the evidence is clinically technical and credibility issues do not arise, special measures may not be problematic; but where the witness is central and contentious, they may be.

There can also be strategic considerations. For example, if a witness’s evidence is particularly damaging, having them attend remotely or off camera might reduce the impact of their evidence and limit the time that they spend before the Tribunal.

Balancing fairness and witness welfare

Each application requires a careful balance:

• The welfare and needs of the witness
• The practitioner’s right to a fair hearing
• The Tribunal’s ability to assess credibility
• The impression created by the defence’s stance to the application 

If an application is made at the hearing itself, the optics become even more important. If it is likely that the application will be granted, opposing it may risk appearing obstructive and create a negative impression from the outset. In such circumstances, it may be in the registrant’s interests to agree to the application, potentially whilst laying down a marker that it is not accepted that special measures are necessary but that the application is not opposed or by having it made clear to the Committee that the application is made on limited grounds (for example, due to a health condition) and does not reflect in any way on the registrant (i.e., there is no suggestion of intimidation). 

Conclusion

Special measures can play a vital role in ensuring that vulnerable witnesses and/or registrants are supported while maintaining the fairness of healthcare regulatory proceedings. For defence teams, each request for special measures made by a regulator must be considered carefully so as to protect registrant’s interests and limit any potential prejudice in the minds of the Tribunal. 

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