Case Summary – R (on the application of The British Medical Association) v General Medical Council [2016] EWHC 1015 (Admin)

Posted by Catharine Donnelly on

High Level Summary

A challenge by the British Medical Association ["the BMA"] regarding the legality of rules, recently introduced by the General Medical Council ["the GMC"] governing the procedure of Fitness to Practise ["FtP"] panels, in relation to the role and function of legally qualified chairs. The basis of the appeal (amongst others) was centred on Article 6. Hickinbottom J dismissed the appeal

Background

In January 2016 the GMC introduced the General Medical Council (Legal Assessors and Legally Qualified Person) Rules Order of Council 2015 (SI 2015 No 1958) ["the Rules"]. The Rules outline provisions in relation to the functions and advice of 'legal assessors' and 'legally qualified persons' at FtP hearings.

The introduction of the Rules does not change the function and roles of legal assessors; however paragraph 6 introduces the option for the GMC to appoint a legally qualified chair ['Chair'] who can advise "the Tribunal on any question of law as to evidence or procedure". 

The introduction of paragraph 6 provides that if there is a Chair, it is not necessary for a legal assessor to be appointed to either a Medical Practitioners Tribunal ["MPT"] or an Interim Order Tribunal ["IOT"]. Unlike legal assessors, a Chair is a member of the decision-making tribunal.

Paragraph 6 sets out what a Chair shall do in circumstances where s/he gives advice to the panel on any question of law or evidence:

  • so advise in the presence of every party, or person representing a party, in attendance at the hearing;
  • if the advice is tendered after the Tribunal has begun to deliberate during the course of the proceedings, include the advice so given in the Tribunal decision, unless the Chair considers it necessary to advise in the presence of every party, or person representing a party, in attendance at the hearing.

Paragraph 6(b) therefore allows for tribunal members to receive legal advice in private deliberations at a hearing without the parties in attendance having any opportunity to comment upon or challenge that advice prior to the tribunal making its determination.

The BMA's challenge was brought in relation to paragraph 6(b) on the basis that it is unlawful as it breaches Article 6 and the common law right to procedural fairness. It was also argued that the provision in paragraph 6(b) is irrational because the Rules provide that parties must have an opportunity to comment on advice from legal assessors. 

Judgment

Handed down by The Hon. Mr. Justice Hickinbottom.

Hickinbottom J first considered the grounds of the challenge and it was readily acknowledged by the BMA that if the claim fell on the ground of Article 6, it would also fail on the ground of the common law right to procedural fairness.

The BMA submitted that a Chair has two, discrete roles; firstly, as a decision maker of the tribunal and, secondly, as the legal advisor.

It was said that when a Chair performs the latter, he undertakes exactly the same role as a legal assessor, which was to formally advise the tribunal of matters of law and procedure and was thus subject to the same jurisprudence and constraints. It was further suggested that the duality of the role is important because when the Chair is wearing the "legal assessor hat", he has the role of both a) advising the other panellists and b) determining that legal point with his other panellist.

The BMA argued that the same requirements of legal assessors, as outlined at paragraph 4 of the Rules, should apply to Chairs when they are wearing the "legal assessor hat" and thus parties should have the same opportunity to comment on any legal advice given by the Chair, as if a legal assessor was present with the panel during their private deliberations.  The BMA relied on a number of sources to support this submission, including the GMC consultation documents, draft rules, the MPT Service website and case law, including the cases of Clark v Kelly [2003] UKPC D1; [2004] 1 AC 681 and Nwabueze v General Medical Council [2000] 1 WLR 1760.

The BMA submitted that where a Chair gives advice to his co-panellists, a party can only properly take part in the proceedings if s/he is given an opportunity to comment upon that advice before a decision is taken and a failure to do such amounts to a breach of Article 6.

Hickinbottom J was unpersuaded by the argument as to the duality of role of legally qualified chairs. He considered the case of In re Chien Sing-Shou [1967] 1 WLR 1155 to be informative in the context of this debate. The case concerned the Hong Kong Architect's Disciplinary Board and it was argued that the "legal adviser" on the panel ought to have given his advice in the presence of the parties. A failure to do such, it was said, amounted to a breach of common law natural justice. The argument failed and it was held that, at all times, "the legal adviser occupies the position of being a full member of the body charged with the duty of acting judicially in making due enquiry."

Hickinbottom J preferred this approach and held at paragraph 46 that:

"Usually, where the legally qualified person is a full member of the tribunal, whilst no doubt giving advice to the other members, he will occupy a different role from a legal assessor who stands outside the decision-making tribunal."

The learned Judge then considered whether the GMC Rules compelled a different conclusion. Hickinbottom J held that the Rules did not and held that the changes introduced by the Rules were drafted as such to "emphasise and enhance the characteristics" shared by the role of Chairs and other tribunals which exercise judicial functions. He held at paragraph 44 that Sing-Shou:

"illustrates that a legal adviser can be said to "give advice" to other members of 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 assessor who are outsiders."

Hickinbottom J further held at paragraph 47 that:

"Both the structure and content of the Rules make abundantly clear that it is intended that, in giving advice, different provisions apply to legal assessors and legally qualified chairs. Had it been intended that, when giving advice, they should be the subject of the same regime, then the GMC could – and, in my judgment, would – have made that clear, as it would have been easy to do."

The argument of duality of role therefore failed as did that of irrationality. In concluding, Hickbottom J held that paragraph 6(b) placed no requirement on Chairs to inform parties of any advice given in private and after deliberations had begun, and it was sufficient for the advice to simply be incorporated into the tribunal's decision, save for the exception provided for in paragraph 6(b).

About the Author

Catharine is an Associate (Solicitor - Advocate) in our Professional Regulatory team at Blake Morgan.

Catharine Donnelly
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