August 12, 2019

Regulatory hearings – no right to remain silent?

Sometimes it is better for a registrant not to give evidence to a fitness to practise panel. And they can do so safe in the knowledge that the panel cannot draw any adverse inferences – until now. The recent decision of the High Court in R (Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin) has overturned that long-held belief. This will have immediate implications for professionals appearing before their regulators and also the legal teams advising them.

In 2016 Mr Kuzmin had an interim order of conditions imposed by the MPTS. However he failed to disclose all of these conditions to his employer. Though ultimately there was no finding of misconduct in the original GMC case, his failure to disclose the interim order resulted in further GMC proceedings involving allegations of dishonesty.

Mr Kuzmin submitted a witness statement to the MPTS.

After the GMC's evidence, Mr Kuzmin made a submission of no case to answer. When this was rejected he withdrew his witness statement. The GMC submitted that the tribunal could draw an adverse inference from his failure to give evidence, particularly in relation to the dishonesty allegation.

The tribunal drew upon the GMC's Good Medical Practice guidance and noted the need to promote and maintain public confidence in the profession. They noted that doctors should cooperate with enquiries, be accountable, and explain their decisions. Though there was no precedent for this course of action, as a matter of principle the tribunal concluded it had the power to draw an adverse inference from the fact that a doctor against whom charges were made did not give evidence.  

Mr Kuzmin judicially reviewed the decision. He argued that regulatory hearings are regarded as quasi-criminal proceedings to which criminal procedures (including the right against self-incrimination) apply. No adverse inference should, or could, be drawn. The court disagreed. It held:

"…both principle and the authorities[…]favour the proposition that disciplinary  tribunals have the legal power to draw adverse inferences from the silence of an individual charged with breaches of the regulatory scheme to which he or she is subject, even if in practice they have not in the past drawn such inferences in individual cases."

Though disciplinary and regulatory tribunals used to apply the criminal standard of proof, it seems inevitable that approach will soon be a relic of history (see our recent blog here). And the right not to have adverse inferences drawn from a person's silence is not a right that extends into the quasi-criminal sphere. It is not a right that exists in civil proceedings.

The use of the criminal standard of proof, and the application of associated protections, provided procedural safeguards for practitioners. This decision represents another shift towards an environment where the protection of patients and the public is a more central concern.

As tribunals may now draw adverse inferences from a registrant's failure to give evidence, consideration must be given to the risks of that strategy. Though this case involved allegations of dishonesty, it is just as applicable where a registrant is accused of clinical failings. This is in the context of the duty of candour being promoted by both statute and by GMC guidance.

There is of course a difference between a tribunal being entitled to draw an adverse inference and them actually doing so. This will undoubtedly be case-specific. The court set out factors it considered would allow an adverse inference to be drawn:

  • "a prima facie case to answer has been established;
  • the individual has been given appropriate notice and an appropriate warning that, if he does not give evidence, then such an inference may be drawn; and an opportunity to explain why it would not be reasonable for him to give evidence and, if it is found that he has no reasonable explanation, an opportunity to give evidence;
  • there is no reasonable explanation for his not giving evidence; and
  • there are no other circumstances in the particular case which would make it unfair to draw such an inference."

This is an area that will be ripe for appeal, at least initially while the courts set out the correct approach to ensure there is no procedural unfairness. The court also encouraged the GMC to produce its own guidance. However in the interim practitioners, and their legal teams, will have to seriously consider any strategy that involves them not giving evidence.

The mood music is clear: engage, reflect, and cooperate candidly. Not doing so is likely to be to a registrant's detriment.