Practice advice: Notice of an IOP hearing
A practitioner can be invited to appear before the IOP of the MPTS/GMC on the initiative of the Registrar or a Case Examiner. The Registrar’s power derives from rule 6 of the Fitness to Practise Rules 2004 [“the Rules”] and can be exercised at any time. The Case Examiner’s power derives from Rule 8(6) and arises when the allegation is referred by the Registrar for consideration by the Case Examiners under rule 8.
The current Rules stipulate the matters that must be set out in the Notice of hearing. Rule 26 cross-refers to rule 15, which expressly requires the Notice to particularise the allegation and the facts on which it is based. Rule 26 goes on to require that the reasons why it is necessary to make or review the interim order be set out in brief in the Notice. In practice the GMC has fallen into the habit of reciting the statutory test in the letter, providing a bundle of papers and, in addition providing a front sheet to the IOP case bundle which sets out some history and may identify why the referral has been made.
In S v GMC1 Walker, J was asked to grant an injunction restraining the IOP from considering a referral made under rule 8(6) of the Rules on the ground that the GMC’s Notice of Hearing (in fact its third attempt at a valid notice) did not provide the required particulars. He found that it was permissible for the required information to be set out in an accompanying document and that determining whether the required particulars had been given was a fact sensitive issue. On looking at the facts of the case he found that the required particulars had not been given and quashed the Notice and thus prevented the hearing taking place the following day.
In S v GMC the GMC annexed to the third Notice of hearing a lengthy written “decision” by the Case Examiner for the referral under rule 8(6). It gave far more information than the letter and in giving his reasons for quashing the Notice the Judge analysed that document and the flaws in
the reasoning set out in it. He made the point that the Notice must say what it is in the particular case that is so serious that it calls for protective action before the facts are established. He acknowledged that in some cases the material may be so cogent that it is apparent even though the IOP will not be making findings of fact.
The GMC hopes to amend the rules2 in early 2013 such that the Notice will be required to inform the practitioner of the allegation and the facts upon which it is based, deleting the express reference to particularisation. Nevertheless, the requirement to provide particulars will remain. S v GMC establishes the principle that the interests of justice require the provision of sufficient particulars such that the practitioner does not have to speculate as to the case they must meet. Indeed, it would probably offend Article 6 ECHR if they did not provide particulars3.
There is a related issue where the invitation to appear before the IOP arises as result of a Case Examiner decision under rule 8(6). For the Case Examiners to be considering the issue of referral to the IOP the Registrar must have referred the allegation of impairment to the Case Examiners for consideration under rule 8 and, in that event, the Registrar’s obligation to write to the practitioner under rule 7 as soon as is reasonably practicable after the referral has been made may have arisen. That rule 7 letter may provide the particulars sought by rule 26. The absence of a rule 7 letter may give rise to an additional challenge to the lawfulness of the Case Examiners’ decision to refer under rule 8(6) on the ground that either the particulars required should be given or the allegation has been prematurely referred to the Case Examiners.
It may be that a better focus by the GMC on why an Interim Order may be required before they formulate the Notice will lead to fewer referrals and incidentally ease the task of the IOP in formulating its reasons for refusing or making an interim order.
On a practical note, in S v GMC the Judge also made an anonymisation order under CPR rule 39 on the ground that the IOP process is in private unless and until an interim order is made or the practitioner seeks a public hearing.
(a) seeking the full particularisation envisaged by rule 26 may not be in the interests of the practitioner in every case;
(b) the particulars can be set out in a document annexed to the Notice;
(c) the requirement is that the practitioner knows a reasonable time before the IOP both the particular matters relied on and why they call for an interim order; and
(d) you may wish to call for the internal GMC document setting out the reasons for the referral and, in a rule 8(6) case, the rule 7 letter.
Alex Leslie & Stewart Duffy
(1) The judgment in S v GMC is not yet available.
(2) GMC Consultation on changes to the FTPR
(3) Madan v GMC  Lloyds Rep Med 539
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.