R (on the application of Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin)
Summary
R (on the application of Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin) concerned a challenge by a registered medical practitioner to the Medical Practitioners Tribunal’s ruling that it had the power in principle to draw adverse inferences from a doctor’s failure to give evidence at a disciplinary hearing. The Divisional Court (Lord Justice Hickinbottom and Mr Justice Butcher) dismissed the claim.
The claimant, a registered medical practitioner, faced disciplinary proceedings before the Medical Practitioners Tribunal brought by the General Medical Council. The charges related to his failure to disclose interim order conditions to an out-of-hours service, including an allegation of dishonesty. After the tribunal dismissed his application of no case to answer, the claimant withdrew his witness statement and indicated that he would not give evidence. The GMC sought a ruling that the tribunal had the power to draw adverse inferences from that refusal. Following submissions, the tribunal ruled on 11 October 2018 that it had that power in principle, though it would consider whether to exercise it on the facts only after hearing full submissions. The claimant sought judicial review of that in-principle decision.
The claimant contended that disciplinary proceedings were quasi-criminal in nature, to which criminal procedures generally applied, including the common law prohibition on drawing adverse inferences from silence. He submitted that this position could only be altered by statute, statutory instrument, or at least by generally applicable policy or guidance issued by the regulator after consultation. He relied on section 35 of the Criminal Justice and Public Order Act 1994, which permitted such inferences in criminal proceedings but applied only to that context. He further argued that rule 16A of the General Medical Council (Fitness to Practise) Rules Order of Council 2004, which expressly permitted the drawing of adverse inferences from procedural defaults, supported the proposition that any power to draw inferences required express provision. The claimant accepted that it might be in the public interest for such inferences to be permitted but maintained that the common law prohibited them absent formal intervention.
The GMC, represented by Eleanor Grey QC, submitted that disciplinary proceedings were civil and not criminal in nature, and that tribunals had the inherent power to draw appropriate inferences from primary facts as part of their general power to make factual findings. The prohibition on adverse inferences from silence in criminal proceedings was an exception to the general rule, historically linked to the accused’s incompetence to testify at trial. Once that incompetence was removed by the Criminal Evidence Act 1898, the common law exception remained only in the criminal context. The GMC argued that the absence of such inferences in healthcare disciplinary proceedings had been a matter of practice or policy, not a common law rule, and that the power to draw them could be recognised without statutory intervention or formal guidance.
Lord Justice Hickinbottom, delivering the judgment of the court, held that disciplinary proceedings before the Medical Practitioners Tribunal were civil and not criminal, notwithstanding that they involved charges which could result in severe consequences for the practitioner. The court rejected the characterisation of such proceedings as a “hybrid” of civil and criminal. The authorities established that disciplinary proceedings determined civil rights and obligations, and that while article 6(2) and (3) of the European Convention on Human Rights might apply mutatis mutandis to ensure procedural fairness, those safeguards were already contained within the notion of a fair trial under article 6(1) and the common law. The fact that some procedural protections associated with criminal proceedings were required in disciplinary cases did not transform those proceedings into criminal ones.
The court emphasised that a fact-finder such as a disciplinary tribunal had an inherent power to draw inferences from primary facts by a process of reasoning and common experience. The common law prohibition on drawing adverse inferences from silence was specific to criminal proceedings and was an exception to the general rule. That exception was not embedded in the common law governing disciplinary proceedings. The court noted that neither the Medical Act 1983 nor the Rules nor any General Medical Council guidance contained any prohibition on drawing such inferences. The claimant’s argument that the position could only be changed by statute or statutory instrument was inconsistent with his acceptance that it could also be changed by policy or guidance issued by the regulator. Such guidance could not alter a common law rule; the fact that it could alter practice in this area indicated that no common law rule was in play.
Lord Justice Hickinbottom considered that the language used in authorities such as Iqbal v Solicitors Regulatory Authority [2012] EWHC 3251 (Admin) and Kearsey v Nursing and Midwifery Council [2016] EWHC 1603 (Admin) referred to the absence of adverse inferences as a matter of practice or policy, not law. In Iqbal, Sir John Thomas PQBD described the position as “the practice” of the Solicitors Disciplinary Tribunal. Following that case, the Solicitors Disciplinary Tribunal issued a practice direction confirming the power to draw such inferences “for the avoidance of doubt,” suggesting that the power had always existed. Cases such as Radeke v General Dental Council [2015] EWHC 778 (Admin) and R (Panjawani) v Royal Pharmaceutical Society of Great Britain [2002] EWHC 1127 (Admin) assumed that the power existed. In Panjawani, Sedley LJ proceeded on the basis that the tribunal had the power to draw such inferences, and the court would have expected him to say so expressly if it did not.
The court rejected the contention that drawing adverse inferences from silence reversed the burden or standard of proof. It was well established that such inferences did not alter the burden of proof, even in criminal cases under section 35 of the 1994 Act. The court also rejected the argument based on rule 16A, holding that the express provision for adverse inferences from procedural defaults was of a completely different nature and appeared as part of a battery of sanctions in that context. The claimant’s “sauce for the goose” argument—that if no adverse inference could be drawn from the regulator’s failure to call a witness, none could be drawn from a doctor’s silence—was rejected on the basis that the circumstances of the regulator and the charged person were entirely different. The regulator bore the burden of proof and it was for the regulator to establish the case; the charged person, once a prima facie case was made, might reasonably be expected to respond, and an inference might be drawn from failure to do so.
The court took account of the evolution of disciplinary proceedings, including the adoption of the civil standard of proof and the broad evidential rule in rule 34 of the Rules, which permitted the admission of any evidence considered fair and relevant whether or not admissible in a court of law. It also emphasised the professional obligation on medical practitioners to engage with the regulator, as reflected in paragraph 73 of Good Medical Practice and in cases such as R (Adeogba) v General Medical Council [2016] EWCA Civ 162, where Sir Brian Leveson PQBD stated that there was a burden on medical practitioners to engage with the regulator and offer relevant information. The court considered that it was in the public interest for the tribunal to have the power to draw adverse inferences from silence.
The court held that an adverse inference from the failure of a charged registered medical practitioner to give evidence could be drawn, subject to such an inference not being procedurally unfair. Generally, no inference should be drawn unless a prima facie case to answer had been established, the individual had been given appropriate notice and warning that such an inference might be drawn and an opportunity to explain why it would not be reasonable to give evidence, there was no reasonable explanation for not giving evidence, and there were no other circumstances making it unfair to draw such an inference. The court rejected the claimant’s submission that the power could not be exercised fairly without express guidance, though it observed that guidance from the General Medical Council and other regulators confirming the existence of the power and its proper use would be of practical assistance and was to be encouraged.
The court rejected each of the claimant’s twelve grounds of challenge. It held that the tribunal had not erred in departing from the legal assessor’s advice, which had urged caution but had not advised that drawing an inference would be unlawful. The question of the tribunal’s power was one of law, and the tribunal had correctly identified the law. The tribunal had not created a precedent or policy but had identified a power inherent in its general procedural powers. The decision was not perverse, and there was no requirement for statutory provision to alter a common law position that did not exist. The tribunal had the power to draw an adverse inference as part of its general power to manage its own procedure and to draw inferences from the evidence. The court accepted that tribunals should generally not be encouraged to make in-principle decisions, but there was no error of law in the tribunal doing so when asked by the parties. The effect of the decision did not reverse the burden of proof, and the fact that the application came from the regulator was not unfair.
In short, the Divisional Court held that the Medical Practitioners Tribunal had the power in principle to draw adverse inferences from a doctor’s failure to give evidence in disciplinary proceedings, subject to procedural fairness, and dismissed the claim for judicial review.
The claimant, a registered medical practitioner, faced disciplinary proceedings before the Medical Practitioners Tribunal brought by the General Medical Council. The charges related to his failure to disclose interim order conditions to an out-of-hours service, including an allegation of dishonesty. After the tribunal dismissed his application of no case to answer, the claimant withdrew his witness statement and indicated that he would not give evidence. The GMC sought a ruling that the tribunal had the power to draw adverse inferences from that refusal. Following submissions, the tribunal ruled on 11 October 2018 that it had that power in principle, though it would consider whether to exercise it on the facts only after hearing full submissions. The claimant sought judicial review of that in-principle decision.
The claimant contended that disciplinary proceedings were quasi-criminal in nature, to which criminal procedures generally applied, including the common law prohibition on drawing adverse inferences from silence. He submitted that this position could only be altered by statute, statutory instrument, or at least by generally applicable policy or guidance issued by the regulator after consultation. He relied on section 35 of the Criminal Justice and Public Order Act 1994, which permitted such inferences in criminal proceedings but applied only to that context. He further argued that rule 16A of the General Medical Council (Fitness to Practise) Rules Order of Council 2004, which expressly permitted the drawing of adverse inferences from procedural defaults, supported the proposition that any power to draw inferences required express provision. The claimant accepted that it might be in the public interest for such inferences to be permitted but maintained that the common law prohibited them absent formal intervention.
The GMC, represented by Eleanor Grey QC, submitted that disciplinary proceedings were civil and not criminal in nature, and that tribunals had the inherent power to draw appropriate inferences from primary facts as part of their general power to make factual findings. The prohibition on adverse inferences from silence in criminal proceedings was an exception to the general rule, historically linked to the accused’s incompetence to testify at trial. Once that incompetence was removed by the Criminal Evidence Act 1898, the common law exception remained only in the criminal context. The GMC argued that the absence of such inferences in healthcare disciplinary proceedings had been a matter of practice or policy, not a common law rule, and that the power to draw them could be recognised without statutory intervention or formal guidance.
Lord Justice Hickinbottom, delivering the judgment of the court, held that disciplinary proceedings before the Medical Practitioners Tribunal were civil and not criminal, notwithstanding that they involved charges which could result in severe consequences for the practitioner. The court rejected the characterisation of such proceedings as a “hybrid” of civil and criminal. The authorities established that disciplinary proceedings determined civil rights and obligations, and that while article 6(2) and (3) of the European Convention on Human Rights might apply mutatis mutandis to ensure procedural fairness, those safeguards were already contained within the notion of a fair trial under article 6(1) and the common law. The fact that some procedural protections associated with criminal proceedings were required in disciplinary cases did not transform those proceedings into criminal ones.
The court emphasised that a fact-finder such as a disciplinary tribunal had an inherent power to draw inferences from primary facts by a process of reasoning and common experience. The common law prohibition on drawing adverse inferences from silence was specific to criminal proceedings and was an exception to the general rule. That exception was not embedded in the common law governing disciplinary proceedings. The court noted that neither the Medical Act 1983 nor the Rules nor any General Medical Council guidance contained any prohibition on drawing such inferences. The claimant’s argument that the position could only be changed by statute or statutory instrument was inconsistent with his acceptance that it could also be changed by policy or guidance issued by the regulator. Such guidance could not alter a common law rule; the fact that it could alter practice in this area indicated that no common law rule was in play.
Lord Justice Hickinbottom considered that the language used in authorities such as Iqbal v Solicitors Regulatory Authority [2012] EWHC 3251 (Admin) and Kearsey v Nursing and Midwifery Council [2016] EWHC 1603 (Admin) referred to the absence of adverse inferences as a matter of practice or policy, not law. In Iqbal, Sir John Thomas PQBD described the position as “the practice” of the Solicitors Disciplinary Tribunal. Following that case, the Solicitors Disciplinary Tribunal issued a practice direction confirming the power to draw such inferences “for the avoidance of doubt,” suggesting that the power had always existed. Cases such as Radeke v General Dental Council [2015] EWHC 778 (Admin) and R (Panjawani) v Royal Pharmaceutical Society of Great Britain [2002] EWHC 1127 (Admin) assumed that the power existed. In Panjawani, Sedley LJ proceeded on the basis that the tribunal had the power to draw such inferences, and the court would have expected him to say so expressly if it did not.
The court rejected the contention that drawing adverse inferences from silence reversed the burden or standard of proof. It was well established that such inferences did not alter the burden of proof, even in criminal cases under section 35 of the 1994 Act. The court also rejected the argument based on rule 16A, holding that the express provision for adverse inferences from procedural defaults was of a completely different nature and appeared as part of a battery of sanctions in that context. The claimant’s “sauce for the goose” argument—that if no adverse inference could be drawn from the regulator’s failure to call a witness, none could be drawn from a doctor’s silence—was rejected on the basis that the circumstances of the regulator and the charged person were entirely different. The regulator bore the burden of proof and it was for the regulator to establish the case; the charged person, once a prima facie case was made, might reasonably be expected to respond, and an inference might be drawn from failure to do so.
The court took account of the evolution of disciplinary proceedings, including the adoption of the civil standard of proof and the broad evidential rule in rule 34 of the Rules, which permitted the admission of any evidence considered fair and relevant whether or not admissible in a court of law. It also emphasised the professional obligation on medical practitioners to engage with the regulator, as reflected in paragraph 73 of Good Medical Practice and in cases such as R (Adeogba) v General Medical Council [2016] EWCA Civ 162, where Sir Brian Leveson PQBD stated that there was a burden on medical practitioners to engage with the regulator and offer relevant information. The court considered that it was in the public interest for the tribunal to have the power to draw adverse inferences from silence.
The court held that an adverse inference from the failure of a charged registered medical practitioner to give evidence could be drawn, subject to such an inference not being procedurally unfair. Generally, no inference should be drawn unless a prima facie case to answer had been established, the individual had been given appropriate notice and warning that such an inference might be drawn and an opportunity to explain why it would not be reasonable to give evidence, there was no reasonable explanation for not giving evidence, and there were no other circumstances making it unfair to draw such an inference. The court rejected the claimant’s submission that the power could not be exercised fairly without express guidance, though it observed that guidance from the General Medical Council and other regulators confirming the existence of the power and its proper use would be of practical assistance and was to be encouraged.
The court rejected each of the claimant’s twelve grounds of challenge. It held that the tribunal had not erred in departing from the legal assessor’s advice, which had urged caution but had not advised that drawing an inference would be unlawful. The question of the tribunal’s power was one of law, and the tribunal had correctly identified the law. The tribunal had not created a precedent or policy but had identified a power inherent in its general procedural powers. The decision was not perverse, and there was no requirement for statutory provision to alter a common law position that did not exist. The tribunal had the power to draw an adverse inference as part of its general power to manage its own procedure and to draw inferences from the evidence. The court accepted that tribunals should generally not be encouraged to make in-principle decisions, but there was no error of law in the tribunal doing so when asked by the parties. The effect of the decision did not reverse the burden of proof, and the fact that the application came from the regulator was not unfair.
In short, the Divisional Court held that the Medical Practitioners Tribunal had the power in principle to draw adverse inferences from a doctor’s failure to give evidence in disciplinary proceedings, subject to procedural fairness, and dismissed the claim for judicial review.