Does Article 6 afford a practitioner the right to comment on legal advice received by a Professional Disciplinary Tribunal?
A recent change in the GMC rules now permits Tribunals to be convened without the appointment of a legal assessor where the Tribunal chair is legally qualified. The change applies to both Interim Orders Tribunal and Medical Practitioner Tribunal hearings. In a recent application for judicial review the court was required to determine whether the new rules breached registrants’ rights to a fair trial by permitting a legally qualified chair to incorporate their legal advice into the Tribunal’s written determination without having communicated that advice in the presence of the parties.
The application for judicial review brought by the British Medical Association was determined by Hickinbottom J at an oral hearing. Permission was refused.
Before the rule change in late 2015, a Tribunal (then called a Panel) could not hold a meeting or a hearing in the absence of a legal assessor and any advice given by the legal assessor during the course of proceedings had to be communicated in the presence of the parties, therefore affording the parties an opportunity to comment.
As noted in paragraph 32 of the judgment, the BMA contended that a legally qualified chair performs two roles:
“First, he is a decision-making member of the tribunal and, as such, with the other panellists, he is responsible for determining the issues before the tribunal, including questions of law and procedure.
“However, second, he is the legal advisor to the tribunal and, as such, has the function of formally advising the tribunal of matters of law and procedure. The roles are discrete; and, when a legally qualified chair performs the latter, he undertakes exactly the same role as a legal assessor, subject to the same jurisprudence and constraints.
“Therefore, when he advises the tribunal deliberating in private, in accordance with cases such as Nwabueze, the parties in attendance must be given an opportunity to comment upon- and, if appropriate, challenge the advice given.”
Mr Justice Hickinbottom rejected the BMA’s application. He pointed to a number of tribunals which include legally qualified and non-legally qualified members which do not share all the legal advice and opinions given by the legally qualified members with the parties to the proceedings, e.g. Employment Tribunals and various chambers of the First Tier Tribunal.
He noted that the GMC’s new rules afford a legally qualified chair a discretion to communicate their legal advice in the presence of the parties if he/she deems it necessary to do so and observed that:
“It would of course be necessary if it would be procedurally unfair not to give the parties such an opportunity, e.g., if it concerns a relevant point of law upon which no submissions have been made and which is (or maybe) controversial and material.”
He also rejected the BMA’s argument that a legally qualified chair has two functions on the basis that:
“Usually where the legally qualified person is a full member of the tribunal, whilst no doubt giving legal advice to the other members, he will occupy a different role from a legal assessor who stands outside the decision making tribunal … a legal adviser can be said to ‘give advice’ to other members of the a tribunal panel where he himself is a full member of that panel, and that does not thereby attract the jurisprudence that has built up around assessors who are outsiders.”
(paragraphs 46 and 49)
Accordingly, the BMA’s application was refused and it was held that the new rule was not contrary to the fair trial rights afforded by Article 6 of the ECHR and the common law.
The practice of communicating legal advice in the presence of the parties afforded the opportunity for comment or correction by the parties before the advice was relied upon in reaching a decision. Where a defendant learns of the legal advice only after it has informed the Tribunal’s decision, their only route to challenge that advice is by way of a statutory appeal. Whilst there may be relatively few cases where the opportunity to comment would materially affect the decision, there is much to be said for that discretion being exercised generously in favour of communication before deliberation.
The decision of Hickinbottom J leaves open the possibility that a decision by a legally qualified chair not to communicate his legal advice in the presence of the parties may result in a breach of the registrant’s fair trial rights. That would fall to be determined on the particular facts of the case.
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