The General Optical Council (Fitness to Practise Rules) Order of Council 2005

PART 7 PROCEDURE AND ORDER OF PROCEEDINGS

Procedural and substantive hearings

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

(a) there shall be one or more procedural hearings; and

(b) there shall be a substantive hearing.

(2) Paragraph (1) shall not apply in any case where the Investigation Committee have given a direction under rule 16(2).

Notification

26.—(1) Where an allegation has been referred to the Fitness to Practise Committee, the registrar shall, as soon as is reasonably practicable, serve on the registrant—

(a) a notification setting out the allegation, the particulars of the allegation and the information set out in paragraph (2);

(b) a copy of the hearing questionnaire completed by the Presenting Officer;

(c) a hearing questionnaire for the registrant to complete;

(d) copies of any statements made by witnesses upon whose evidence the Presenting Officer intends to rely; and

(e) copies of any documentary evidence upon which the Presenting Officer intends to rely.

(2) The notification in paragraph (1)(a) shall inform the registrant:

(a) of his right to attend the hearing and to be represented at the hearing in accordance with rule 20;

(b) of the power of the Fitness to Practise Committee to proceed in his absence under rule 21;

(c) of his right to adduce evidence in accordance with rule 46 and to call and cross-examine witnesses; and

(d) of the Committees powers of disposal under section 13F to 13I.

Completion of hearing questionnaire by the registrant

27.  No later than 28 days after the service on the registrant of the hearing questionnaire referred to in rule 26(1)(b), the registrant shall—

(a) complete the hearing questionnaire served on him or it under rule 26(1)(c); and

(b) serve it upon the Presenting Officer and the registrar.

Procedural hearing

28.  The registrar shall serve on the parties a notification in writing of the date of any procedural hearing.

29.  A procedural hearing shall not be held earlier than 7 days after the date upon which the hearing questionnaire completed by the registrant was due to be served on the Presenting Officer and the registrar in accordance with the provisions of rule 27.

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

(a) may consider the completed hearing questionnaires;

(b) may invite representations from the parties (if present);

(c) may establish a timetable for the disclosure of evidence by each party; and

(d) shall make directions for the further conduct of the matter.

Date of substantive hearing

31.  Except where the parties agree that the substantive hearing may follow on immediately from a procedural hearing—

(a) the registrar shall serve on the parties a notification in writing of the date of the substantive hearing; and

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

Advance provision of information

32.—(1) This rule applies to—

(a) copies of any statements or reports made by witnesses; and

(b) copies of any documentary evidence,

upon which the registrant or the Presenting Officer intend to rely and which each agrees may be disclosed to the other and to the Fitness to Practise Committee in advance of the substantive hearing.

(2) Subject to any timetable for disclosure of evidence established under rule 30, each party shall, no later than 14 days before the date fixed for the substantive hearing, provide to the other the copies of documents to which this rule applies.

Committee copies of documents

33.  No later than 7 days before the date fixed for the substantive hearing, the registrar shall provide to the Fitness to Practise Committee copies of all documents provided under rule 32.

Amendment of particulars of allegation

34.—(1) The Presenting Officer may apply to the Fitness to Practise Committee for the particulars of the allegation contained in the notification served under rule 26(1)(a) to be amended.

(2) The Fitness to Practise Committee may grant such an application where they are satisfied that it is just to do so.

(3) If the Fitness to Practise Committee decide to amend the particulars of the allegation at a procedural hearing and the registrant is not present at the hearing at which the matter is considered, they shall direct the registrar to serve on the registrant notification of the amended particulars of allegation.

Adjournment

35.—(1) At any stage a party may apply to the Fitness to Practise Committee for the adjournment of a hearing.

(2) Such an application shall be heard either at the hearing at which the application is made or, if the application is made otherwise than at a hearing, on the next date upon which the Fitness to Practise Committee sit.

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

(2) When announcing their decision, the Committee shall, if granting the application fix a new date for the hearing.

37.  Where the Fitness to Practise Committee decide to adjourn a hearing under rule 36, the registrar shall serve on the parties a notification of the adjournment and the new date for the hearing.

Admissibility of evidence

38.—(1) Subject to paragraphs (2) and (3), the Fitness to Practise Committee may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law.

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

(3) Evidence which has not been disclosed in accordance with rule 32 or any timetable established by the Fitness to Practise Committee under rule 30 shall be admitted only with the permission of the Fitness to Practise Committee given at the substantive hearing.

Vulnerable witnesses

39.—(1) In proceedings before the Fitness to Practise Committee, the following may, if the quality of their evidence is likely to be adversely affected as a result, be treated as a vulnerable witness—

(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(1);

(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 it to receive evidence from a vulnerable witness.

(3) Measures adopted by the Committee may include, but shall not 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 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 private.

(4) Where—

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

(b) a witness is an alleged victim; and

(c) the registrant is acting in person,

the registrant shall not without the written consent of the witness be allowed to cross-examine the witness in person.

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

Evidence on oath

40.  Witnesses shall be required to take an oath, or to affirm, before giving oral evidence at a hearing.

Legal advisers

41.  The Fitness to Practise Committee shall be advised by a legal adviser who shall—

(a) be present at all hearings;

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

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

(d) intervene to advise the Committee or the Panel of any irregularity in the conduct of the proceedings which comes to his 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) if the advice is tendered after the Committee have begun to deliberate as to their findings, every such party is informed as to the advice given; and

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

Clinical advisers

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

(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 them 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 have begun to deliberate as to their findings, every such party is informed as to the advice given.

Specialist advisers

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

(a) be present at the hearing;

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

(c) ensure that—

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

(ii) if the advice is tendered after the Committee have begun to deliberate as to their findings, that every such party is informed as to the advice given.

Admissions

44.  If the registrant is present at the hearing, the Fitness to Practise Committee shall ascertain whether the registrant wishes to make any admissions.

Presentation of the Presenting Officer’s case

45.—(1) The Presenting Officer shall address the Fitness to Practise Committee in relation to each allegation and may call witnesses and adduce documentary and other evidence in support.

(2) Any witness who gives oral evidence under paragraph (1) may be cross-examined by the registrant and re-examined by the Presenting Officer.

Presentation of the registrant’s case

46.—(1) Following the presentation of evidence by the Presenting Officer, the registrant may address the Fitness to Practise Committee in relation to each allegation and may call witnesses and adduce documentary and other evidence in support.

(2) Any witness who gives oral evidence under paragraph (1) may be cross-examined by the Presenting Officer and re-examined by the registrant.

Evidence in rebuttal

47.—(1) The Presenting Officer may, with the permission of the Fitness to Practice Committee, call witnesses and adduce documentary and other evidence in rebuttal of any matter raised by the registrant.

(2) Any witness who gives oral evidence under paragraph (1) may be cross-examined by the registrant and re-examined by the Presenting Officer.

Questions

48.  In addition to any question put to any witness pursuant to rules 45 to 47, questions may also be put by—

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

(b) with the permission of the Chairman 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 he has been appointed.

Submissions

49.—(1) Following the presentation of evidence, including any evidence in rebuttal, the Presenting Officer shall be entitled to address the Fitness to Practise Committee.

(2) Following any address made by the Presenting Officer, the registrant shall be entitled to address the Fitness to Practise Committee.

Findings

50.  The Fitness to Practise Committee shall then determine their findings as to fact and as to whether or not the allegation is proven.

(1)

1983 c. 20.