The General Medical Council (Fitness to Practise and Constitution of Panels and Investigation Committee) (Amendment) Rules Order of Council 2013

EXPLANATORY NOTE

(This note is not part of the Order)

The Rules scheduled to this Order amend the General Medical Council (Fitness to Practise) Rules 2004 (scheduled to S.I. 2004/2608) (“the Fitness to Practise Rules”) and the General Medical Council (Constitution of Panels and Investigation Committee) Rules 2004 (scheduled to S.I. 2004/2611) (“the Constitution Rules”).

Rule 2 amends the Fitness to Practise Rules.

Paragraphs (2) and (9)(a) make provision for the postponing of fitness to practise hearings under rule 29 of the Fitness to Practise Rules by a Case Manager appointed under rule 16.

Paragraph (3) amends rule 4 of the Fitness to Practise Rules to remove the requirement to notify a practitioner when a complaint is closed on the ground that it does not raise a question of impairment under section 35C(2) of the Medical Act 1983(1).

Paragraph (4) amends rule 11(7) of the Fitness to Practise Rules to provide that documentary evidence may be admitted before the Investigation Committee (“the Committee”) without a requirement for the Committee to consider whether such evidence is desirable to enable it to discharge its functions. It makes a further change so that oral evidence shall not be admitted unless the Committee considers that such evidence is necessary to enable it to discharge its functions.

Paragraphs (5)(a), (12)(c) to (f) and (13) make amendments to introduce a presumption that a witness statement shall stand as a witness’ evidence-in-chief. The amendment to rule 34(11) requires the Committee or a Fitness to Practise or Interim Orders Panel (“a Panel”) to accept witness statements as evidence-in-chief unless the parties agree, a Case Manager directs, or the Committee or Panel decide otherwise. Rule 16 is amended to introduce an express power for a Case Manager to issue a direction to permit evidence-in-chief by way of oral evidence. Amendment is made to rule 34(9), and a new rule 34(9A) and (9B) introduced, to provide that notice must be given where a party intends to apply to the Committee or Panel for a witness to give evidence-in-chief orally.

Paragraphs (5)(b) and (11) make express provision in rule 16(6)(f) permitting a Case Manager to issue a direction for two or more allegations against one or more practitioners to be listed for consideration together at the same hearing, and that any such direction shall be taken into account by the Committee or Panel when considering the exercise of their power of joinder under rule 32.

Paragraph (6) amends the procedure before a Fitness to Practise Panel set out in rule 17 of the Fitness to Practise Rules. Paragraph (6)(a) removes the requirement, at the start of a hearing, for the particulars of the allegation against the practitioner to be read out, and introduces a requirement for the Chair of the panel to ask if the Presenting Officer wishes to apply for the particulars to be amended, and to consider any such application accordingly. Paragraph (6)(b) amends rule 17(2)(g) to provide that the practitioner may make submissions after the Council has presented its evidence that there is insufficient evidence to find some or all of the facts proved and that the hearing should proceed no further as a result.

Paragraph (7) amends the formal requirements for notices of hearing before an Interim Orders Panel in rule 26(2)(a). The requirement to particularise the allegation and the facts upon which it is based is substituted with a requirement to inform the practitioner of the allegation and the facts upon which it is based.

Paragraph (8) amends the procedure for cancellation of fitness to practise hearings in rule 28 to provide that cancellation decisions are to be made by a Case Examiner in place of a member of the Committee.

Paragraph (9)(b) amends rule 29 to provide that, on the resumption of an adjourned Committee or Panel hearing, if a panellist will not be present who was present prior to the adjournment or a panellist will be present who was not present prior to the adjournment, the Committee or Panel (as the case may be) may issue such directions as they consider necessary in the interests of justice about: the stage at which the hearing is to be resumed; and any special procedure which must be followed (including varying an existing direction or the order of proceedings under these Rules).

Paragraph (10) amends rule 30 which provides that determinations in respect of preliminary legal arguments are binding on subsequent panels considering the case subject to a proviso. The proviso for circumstances in which the subsequent panel considers, on legal advice, that the preliminary legal issue has been wrongly decided is substituted with a proviso that reconsideration of the issue can take place in circumstances in which the Committee or Panel consider that there has been a material change in circumstances and it is in the interest of justice to do so, or where it is otherwise in the interests of justice to do so.

Paragraph (12)(a) and (b) removes the rule in rule 34(2) which prohibits a Committee or Panel from admitting evidence which would not be admissible in criminal proceedings in England unless the Committee or Panel are satisfied that their duty of making due inquiry into the case before them makes its admission desirable.

Paragraph (12)(h) makes provision for applications to a Committee or Panel for oral evidence to be given by means of video link or telephone link.

Paragraph (14) removes the requirement for the secretary to a Committee or Panel to record and publish the panel’s decision, and places the obligation on the panel to record the decision itself. Section 35B(4) of the Medical Act 1983(2) makes provision regarding publication of the decision.

Rule 3 amends the Constitution Rules.

Paragraph (3) makes provision enabling panellists to sit on review hearings before a Fitness to Practise Panel or Interim Orders Panel or restoration hearings, or to act both as a Case Manager and panellist in a case, notwithstanding the provisions of rule 4(3) of the Constitution Rules which provides that no panellist shall sit on the substantive hearing of a case which the panellist has previously considered or adjudicated on in another capacity.

Paragraph (4) amends the provisions in rule 6 relating to quorum to clarify that a quorum of a Panel or the Committee is to be three panellists, including the Chair, of whom at least one must be a medical panellist and at least one must be a lay panellist.

Rule 4 makes saving provisions in relation to the amendments made by rule 2(4) and (12).

(1)

1983 c. 54. Section 35C(2) was substituted by S.I. 2002/3135.

(2)

Section 35B(4) was substituted by S.I. 2006/1914.