The General Optical Council (Fitness to Practise) Rules Order of Council 2013

PART 7 PROCEDURE AND ORDER OF PROCEEDINGS

Procedural and substantive hearings

27.—(1) Where an allegation has been referred to the Fitness to Practise Committee—

(a) there may be one or more procedural hearings in accordance with rules 30 to 33;

(b) there is to be a substantive hearing.

(2) Paragraph (1) is not to apply in any case where the case examiners have given a direction under rule 16(4).

(3) Procedural hearings are to be private hearings.

Notification

28.—(1) Where an allegation has been referred to the Fitness to Practise Committee, the registrar must, as soon as reasonably practicable, serve on the registrant a notification setting out—

(a) the allegation and the grounds upon which it has been made;

(b) the registrant’s right to attend and be represented at the hearing in accordance with rule 21;

(c) the power of the Fitness to Practise Committee to proceed in the registrant’s absence under rule 22;

(d) the registrant’s right to adduce evidence and to call and cross-examine witnesses in accordance with rules 46(10) and 47; and

(e) the Committee’s powers of disposal under sections 13F to 13I.

Standard procedural directions

29.—(1) Unless varied by a direction of the Fitness to Practise Committee under rule 32, or by a direction issued without a procedural hearing at the written request of all the parties under rule 33, the standard procedural directions set out in the Table are to apply when an allegation is referred to the Fitness to Practise Committee.

Standard Procedural Directions Table

Direction Number	Directions
Service of evidence
1.	No later than six months from the date on which the allegation was referred to the Fitness to Practise Committee, the Presenting Officer must serve on the registrant concerned—
	(a) finalised particulars of the allegation, sufficiently particularised to enable the registrant concerned to understand the allegation; (b) any statements of evidence, expert reports or other documents relied upon by the Presenting Officer in support of the Council’s case, not previously served upon the registrant; (c) any evidence or documents in the possession of the Presenting Officer (other than documents for which privilege is claimed) which, whilst not relied upon in the Council’s case, may assist in the preparation of the registrant’s defence; (d) a list of witnesses whose evidence will be relied on by the Council in support of its case, and (e) a time estimate for the Council’s case.
2.	No later than 28 days from the date when the material set out in direction 1 was sent to the registrant, the registrant must serve on the Presenting Officer a time estimate for the substantive hearing.
3.	No later than 4 months from the date when the material set out in direction 1 was sent to the registrant, the registrant must serve on the Presenting Officer—
	(a) any statements of evidence (including witness statements), expert reports or other documents relied upon in support of the registrant’s case; (b) a list of witnesses whose evidence will be relied upon in support of the registrant’s case; and (c) a time estimate for the registrant’s case.
Inspection of documents
4.	At any time after the service of a document by a party under this Part up until the commencement of the relevant hearing, the party being served with the document may serve notification on the other party in possession of the original version of the document requesting to inspect and examine it.
5.	The party in possession of the original version of the document must provide facilities for its inspection and examination—
	(a) within 10 days from the notification of the request; or (b) if the request is notified less than 10 days before the date on which the hearing is to commence, as soon as it is reasonably practicable to provide those facilities.
Hearing bundles
6.	Before any hearing, no later than 10 working days before the Monday of the week in which the hearing is to take place before the Fitness to Practise Committee, the parties must serve on each other copies of the bundles on which they intend to rely at the hearing.
7.	No later than 5 working days before the Monday of the week in which the hearing is to take place, the parties must serve on the Hearings Manager 8 paginated copies of—
	(a) where the bundle for the hearing has been agreed between the parties, the agreed bundle; or
	(b) where the bundle for the hearing has not been agreed—
	(i) a statement by each party setting out why the bundle for the hearing has not been agreed,
	(ii) a statement from the party seeking to rely on any disputed material why that party seeks to include it in the bundle, and
	(iii) the bundles on which each party intends to rely at the hearing.
Witness lists
8.	No later than 5 working days before the Monday of the week in which the hearing is to take place, the parties must serve on the Hearings Manager a list (which they must endeavour to agree but must otherwise serve separately) indicating —
	(a) any witness whose evidence has been agreed and who therefore does not need to be called; and
	(b) any witness who is to be called to give oral evidence before the Committee.
9.	Any document which has not been served on the Fitness to Practise Committee in accordance with the provisions of directions 2 to 8 is only to be admitted into the evidence at the hearing with the permission of the Fitness to Practise Committee.

(2) Paragraph (1) does not apply where rule 20 applies.

Procedural hearings

30.  Either the Presenting Officer or the registrant may require a procedural hearing to be held by notifying the Hearings Manager and the other parties in writing.

31.  The Hearings Manager must serve on the parties notification in writing of the date of the procedural hearing, which must not be earlier than 7 days after the date upon which party requiring the hearing notified the registrar of the request.

32.  At a procedural hearing, the Fitness to Practise Committee may—

(a) invite representations from any party who attends; and

(b) vary the standard directions.

33.—(1) The Fitness to Practise Committee may vary the standard procedural directions in rule 29, either at a procedural hearing or, following a written request from all the parties, upon the next occasion when the Committee sits.

(2) Any varied directions issued by the Committee—

(a) must provide for a timetable for the disclosure of evidence by each party; and

(b) may provide for any other procedural steps as seem appropriate to the Fitness to Practise Committee for the further conduct of the matter.

Date of substantive hearing

34.—(1) The Hearings Manager must serve on the parties a notification in writing of the date of the substantive hearing.

(2) The substantive hearing must not be held earlier than 28 days after the date upon which the notification of the date of hearing was served on the registrant.

Adjournment

35.—(1) At any stage, a party may apply to the Fitness to Practise Committee for the adjournment of a hearing and must notify the other parties of the application.

(2) Such an application must be considered either—

(a) at the hearing at which the application is made; or

(b) if the application is made otherwise than at a hearing, on the next date upon which the Fitness to Practise Committee sit: in such a case all parties must be notified of that date by the Hearings Manager.

36.—(1) Upon the hearing of an application under rule 35, or of its own motion, the Fitness to Practise Committee may adjourn a hearing.

(2) Where the Fitness to Practise Committee decides to adjourn a hearing, it may fix a new date for the hearing.

37.  Where the Fitness to Practise Committee decides to adjourn a hearing under rule 36, the Hearings Manager is to serve on the parties a notification of the adjournment and the new date for the hearing.

Standard and burden of proof

38.  The standard of proof applicable to proof of any facts alleged by the Council at substantive hearings before the Fitness to Practise Committee is the standard applicable in civil proceedings.

39.  The burden of proof at substantive hearings before the Fitness to Practise Committee rests upon the Council.

Admissibility of evidence

40.—(1) The Fitness to Practise Committee may admit any evidence it considers fair and relevant to the case before it, whether or not such evidence would be admissible in a court of law.

This is subject to paragraphs (2) and (3).

(2) Where evidence would not be admissible in civil proceedings in England and Wales, the Committee shall not admit such evidence unless, on the advice of the legal adviser, it is satisfied that its duty of making due inquiry into the case before it makes its admission desirable.

(3) Production of a certificate purporting to be under the hand of a competent officer of a Court in the United Kingdom or overseas that a person has been convicted of a criminal offence or, in Scotland, an extract conviction, shall be conclusive evidence of the offence committed.

(4) Production of a certificate signed by an officer of a regulatory body that has made a determination about the fitness to practise of a person shall be conclusive evidence of the facts found proved in relation to that determination.

(5) The only evidence which may be adduced by the person referred to in paragraphs (3) and (4) in rebuttal of a conviction or determination certified in the manner specified in those paragraphs is evidence for the purpose of proving that the person is not the person referred to in the certificate or extract.

(6) The registrant may admit a fact or description of a fact, and a fact or description of a fact so admitted may be treated as proved.

(7) A copy of a document of which the original is admissible may be received by the Committee without strict proof.

(8) A party may at any time serve notice, which may be admitted into evidence by the Committee, on the other party to produce the original or a copy of any document that is—

(a) relevant to the proceedings; and

(b) alleged to be in the possession, ownership or control of that party.

Vulnerable witnesses

41.—(1) Any person falling into one or more of the following categories may be treated by the Fitness to Practise Committee as a vulnerable witness in proceedings before it—

(a) any witness under the age of 17 at the time of the hearing;

(b) any witness with a mental disorder within the meaning of the Mental Health Act 1983;

(c) any witness who is significantly impaired in relation to intelligence and social functioning;

(d) any witness with physical disabilities who requires assistance to give evidence;

(e) any witness, where the allegation against the registrant is of a sexual nature and the witness was the alleged victim; and

(f) any witness who complains of intimidation.

(2) Subject to the advice of the legal adviser, and upon hearing representations from the parties, the Committee may adopt such measures as it considers desirable to enable them to receive evidence from a vulnerable witness.

(3) Measures adopted by the Committee may include, but are not to be limited to—

(a) use of video links;

(b) use of pre-recorded evidence as the evidence-in-chief of a witness, provided always that such a witness is available at the hearing for cross-examination and questioning by the Committee;

(c) use of interpreters (including signers and translators) or intermediaries;

(d) use of screens or such other measures as the Committee consider necessary in the circumstances in order to prevent—

(i) the identity of the witness being revealed to the press or the general public, or

(ii) access to the witness by the registrant; and

(e) the hearing of evidence by the Committee in a private hearing.

(4) A registrant who is acting in person may not, without the written consent of the witness, cross-examine that witness where—

(a) the allegation against the registrant is based on facts which are sexual in nature; and

(b) that witness is an alleged victim in relation to that allegation.

(5) In the circumstances set out in paragraph (4), in the absence of written consent, the registrant must, no less than 7 days before the hearing, appoint a legally qualified person to cross-examine the witness on the registrant’s behalf: in default of the registrant doing so the Council must appoint such a person.

Witnesses

42.—(1) Witnesses are required to take an oath, or to affirm, before giving oral evidence at a hearing.

(2) The Fitness to Practise Committee may, upon the application of the party calling a witness, direct that any details which identify that witness may not be revealed in public.

(3) Except for expert witnesses and the registrant, witnesses are not allowed to be present during the hearing until after they have completed their evidence and have been formally released by the Committee.

Legal advisers

43.  The Fitness to Practise Committee must be advised by a legal adviser who must—

(a) be present at all hearings;

(b) advise the Committee on any matters of law, evidence or procedure which are referred to the legal adviser by the Committee;

(c) advise the Committee on an issue of law where it appears to the legal adviser that, without the legal adviser’s intervention, there is the possibility of a mistake of law being made;

(d) intervene to advise the Committee of any irregularity in the conduct of the proceedings which comes to the legal adviser’s knowledge;

(e) ensure that—

(i) advice given to the Committee under paragraph (b) is tendered in the presence of the parties attending the hearing, or

(ii) where advice is tendered after the Committee has begun to deliberate in private, every such party is informed as to the advice given;

(f) if the Committee so requires, advise on the drafting of the Committee’s decisions.

Clinical advisers

44.  Where a registrant’s physical or mental health is to be considered by the Fitness to Practise Committee, the Committee is to be advised by a clinical adviser who must—

(a) be present at the hearing at which the registrant’s physical or mental health is to be considered;

(b) advise the Committee on the significance of any evidence before it pertaining to the registrant’s physical or mental health;

(c) ensure that—

(i) advice given to the Committee under paragraph (b) is tendered in the presence of the parties attending the hearing, or

(ii) if the advice is tendered after the Committee has begun to deliberate in private, every such party is informed as to the advice given.

Specialist advisers

45.  Where a specialist adviser has been appointed in relation to a matter to be considered at a substantive hearing, the adviser must—

(a) be present at the hearing;

(b) advise the Fitness to Practise Committee on matters relating to the specialty for which the specialist adviser has been appointed;

(c) ensure that—

(i) advice given to the Committee under paragraph (b) is tendered in the presence of the parties attending the hearing, or

(ii) if the advice is tendered after the Committee has begun to deliberate in private, that every such party is informed as to the advice given.

Order of proceedings at substantive hearings of the Fitness to Practise Committee

46.—(1) Unless the Fitness to Practise Committee determines otherwise, the procedure at a substantive hearing is to be as provided for in this rule.

(2) The Chair of the Fitness to Practise Committee (“the Chair”) is to—

(a) require the registrant’s name and registration number to be confirmed by the registrant, where the registrant is present; or

(b) require the Presenting Officer to confirm the registrant’s name and registration number, where paragraph (a) does not apply.

(3) The Fitness to Practise Committee is to hear and consider any preliminary legal arguments.

(4) The allegation against the registrant is to be read by the Hearings Manager.

(5) The Chair is to inquire whether the registrant wishes to make any admissions.

(6) Where facts have been admitted, the Chair must announce that such facts have been found proved.

(7) Where facts remain in dispute, the Presenting Officer is to open the case for the Council and may adduce evidence and call witnesses in support of it.

(8) Before opening the registrant’s case, the registrant may make submissions as to—

(a) whether sufficient evidence has been adduced upon which the disputed facts could be found proved;

(b) whether the facts, whether they are disputed or proved, could support a finding of impairment.

(9) The Fitness to Practise Committee must consider and announce its decision as to whether any submissions under paragraph (8) should be upheld.

(10) Unless any submission under paragraph (8) is upheld and the hearing is consequently concluded, the registrant’s case is to be opened, and the registrant may adduce evidence and call witnesses in support of it.

(11) The Fitness to Practise Committee must then consider and announce its findings of fact and give reasons for that decision.

(12) Following the announcement referred to in paragraph (11), the Fitness to Practise Committee may receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the grounds of impairment alleged under section 13D are established.

(13) Where on the basis of the facts found proved by it, and having considered any further evidence or submissions referred to in paragraph (12), the Fitness to Practise Committee is minded to conclude that the alleged grounds of impairment under section 13D are established, it must announce that fact and reasons for it.

(14) Following the announcement referred to in paragraph (13) the Fitness to Practise Committee may receive further evidence and hear any further submissions from the parties (not being evidence or submissions referred to in paragraph (12)) as to whether the registrant’s fitness to practise is impaired.

(15) The Fitness to Practise Committee must, having considered any further evidence submitted and any further submissions made under paragraph (14), announce its decision together with the reasons for it, on the question of whether the fitness to practise of the registrant is impaired.

(16) Following the announcement of that decision the Fitness to Practise Committee may receive further evidence and hear any further submissions from the parties as to—

(a) the appropriate sanction, if any, to be imposed; or

(b) where the registrant’s fitness to practise is not found to be impaired, the question of whether a warning should be imposed.

(17) The Fitness to Practise Committee must, having considered any further evidence and any further submissions made under paragraph (16), announce its decision as to the sanction or warning (if any) to be imposed, giving reasons for its decision.

(18) Where the Fitness to Practise Committee is minded to impose an order for immediate suspension or immediate conditions on the registrant’s registration under section 13l, it must invite representations from the parties before making and announcing its decision as to whether to impose such an order, together with its reasons for that decision.

(19) The Fitness to Practise Committee must revoke any interim order which remains in place in respect of the registrant in accordance with section 13L(11) and (12) (revocation of the order with immediate effect after determining the matter in accordance with section 13F).

(20) Where it appears to the Fitness to Practise Committee at any time during the hearing, either upon the application of a party or of its own volition, that—

(a) the particulars of the allegation or the grounds upon which it is based and which have been notified under rule 28, should be amended; and

(b) the amendment can be made without injustice,

it may, after hearing the parties and consulting with the legal adviser, amend those particulars or those grounds in appropriate terms.

(21) In determining whether a registrant’s fitness to practise is impaired, the Fitness to Practise Committee may take into account the registrant’s failure to submit to, or to comply with, an assessment under rule 6 or rule 7 where—

(a) there is credible evidence before it that the registrant’s fitness to practise is so impaired;

(b) a reasonable request has been made to the registrant by the Investigation Committee or the Fitness to Practise Committee that the registrant submit to or comply with the assessment; and

(c) no reasonable excuse for such a failure has been provided by the registrant.

(22) When determining whether a registrant’s fitness to practise is impaired by reason of adverse physical or mental health, the Fitness to Practise Committee may take into account—

(a) the registrant’s current physical or mental condition;

(b) any continuing or episodic condition suffered by the registrant; and

(c) a condition suffered by the registrant which, although currently in remission, may reasonably be expected to cause a recurrence of impairment of the registrant’s fitness to practise.

(23) At any stage before making its decision as to the imposition of a sanction or warning, the Fitness to Practise Committee may adjourn for further information or reports to be obtained in order to assist it in exercising its functions.

Questions

47.—(1) A witness called by a party may be questioned—

(a) by the party calling that witness;

(b) subject to rule 41(4), by the opposing party in cross-examination; and

(c) by the party calling the witness in re-examination.

(2) In addition to any question put to any witness pursuant to paragraph (1), questions may also be put by—

(a) a member of the Fitness to Practise Committee; and

(b) with the permission of the Chair of the Committee—

(i) the legal adviser,

(ii) a clinical adviser, where appointed, on matters relating to the physical or mental health of the registrant, and

(iii) a specialist adviser, where appointed, on matters relating to the specialty for which the specialist has been appointed.

Declarations where allegation not proven

48.  Where, in the case of an individual registrant, it has been alleged that the registrant’s fitness to practise is impaired but the Fitness to Practise Committee decide that it is not impaired—

(a) the Committee must, if requested by the registrant, make a declaration to that effect, giving reasons for its decision; or

(b) the Committee may, if no such request is made but the registrant nonetheless consents, make such a declaration.

49.  Where, in the case of a business registrant, it has been alleged that the registrant is not fit to carry on the business of an optometrist or a dispensing optician or both but the Fitness to Practise Committee decide that the registrant’s fitness to carry on that business is not impaired—

(a) the Committee must, if requested by the registrant, make a declaration to that effect, giving reasons for its decision; or

(b) the Committee may, if no such request is made but the registrant nonetheless consents, make such a declaration.

Written decision

50.  The Fitness to Practise Committee must give the parties a written record of its decisions under these Rules, together with any reasons which have been given for any decision made.

Notification and disclosure of outcome of investigations and hearings

51.  The Council may disclose to the maker of the allegation and to the registrant’s employer (if known to the registrar)—

(a) a decision of the case examiners;

(b) a decision of the Investigation Committee;

(c) a decision of the Fitness to Practise Committee.

Costs and expenses

52.—(1) The Fitness to Practise Committee may, as it thinks fit, summarily assess the costs of any party to a substantive hearing or to any review hearing other than a hearing to review an interim order, and may order any party to pay all or part of the costs or expenses of any other party relating to that hearing.

(2) Where a party wishes the Fitness to Practise Committee to summarily assess and to make an order for costs, that party must notify the other parties and the Hearings Manager no later than 48 hours before the date of the hearing and must serve on any other parties, and on the Hearings Manager, a schedule of costs or expenses relating to the hearing.

(3) After announcing the Fitness to Practise Committee’s decision, the Chair may invite representations as to whether costs or expenses should be assessed against either party.

(4) After hearing any representations from the parties, the Fitness to Practise Committee may, if it thinks fit and having regard to the party’s ability to pay, order that a party shall pay all or part of the costs or expenses relating to the hearing incurred by the other party.

53.—(1) Where the Fitness to Practise Committee orders a party to pay costs or expenses, the Chair may—

(a) summarily assess the costs or expenses to be paid; or

(b) require the parties to agree the figure for the costs or expenses to be awarded or to submit to taxation by a person appointed by the Hearings Manager.

(2) Where a person is appointed by the Hearings Manager in accordance with paragraph (1)(b), that person must also determine how the costs of the assessment are to be apportioned.

Period of payment

54.  Where the Fitness to Practise Committee has made an order under rule 52, it may specify the period within which the costs or expenses are to be paid.