Applying for a MPT Hearing to be Heard in Private (Privacy)
Hearings in Private: How Doctors, Anaesthetic Associates and Physician Associates Can Apply
The law on private hearings is guided by the principle of open justice, which requires almost all court proceedings to be held publicly to ensure transparency and maintain public confidence in the justice system, including hearings at the Medical Practitioner Tribunal Service (MPTS). Nevertheless, there are limited exceptions where hearings or parts of hearings can be held in private, upon application. Personal embarrassment, by way of example, is not deemed a justification for a hearing to be heard in private.
Under the 2004 GMC Fitness to Practice Rules, a test must be satisfied before a Medical Practitioners Tribunal hearing or other hearing can be held in private. By way of section 41 of the GMC Fitness to Practise Rules 2004:
41.
(1) Subject to paragraphs (2) to (6) below, hearings before the Committee and a Medical Practitioners Tribunal shall be held in public.
(2) The Committee or Medical Practitioners Tribunal may determine that the public shall be excluded from the proceedings or any part of the proceedings, where they consider that the particular circumstances of the case outweigh the public interest in holding the hearing in public.
(3) Subject to paragraphs (4) to (6), the Committee or a Tribunal shall sit in private, where they are considering-
(a) whether to make or review an interim order; or
(b) the physical or mental health of the practitioner.
(4) Where it is considering an allegation or a non-compliance matter, the Medical Practitioners Tribunal may revoke an interim order in public.
(5) A Tribunal shall, where it is considering matters under paragraph (3)(a), sit in public where the practitioner requests it to do so.
(6) Subject to paragraph (5), the Committee or Tribunal may, where they are considering matters under paragraph (3)(a) or (b), hold a hearing in public where they consider that to do so would be appropriate, having regard to-
(a) the interests of the maker of the allegation (if any);
(b) the interests of any patient concerned;
(c) whether a public hearing would adversely affect the health of the practitioner; and
(d) all the circumstances, including the public interest.
(7) The Committee or Tribunal may deliberate in camera, in the absence of the parties and of their representatives and of the public, at any time.
Unpacking that section, an applicant will need to make an argument supported by evidence. Where evidence of an applicant’s health is being explored, the Tribunal will need to sit in private, pursuant to section 41(3)(b), which requires it. However, this does not mean that the entire case will be heard in private. Where health matters can be safely compartmentalised, the Tribunal will go into private for the health elements and sit in public for all other elements.
There will be cases where going in and out of private sessions will be so frequent and unpredictable that it would be complicated, difficult, and disruptive to the overall conduct of the proceedings, and therefore contrary to the overall public interest in securing justice while balancing the applicant’s privacy needs. But such hearings will be rare, and the majority of cases will be held (mostly) in the public domain.
In Miller v General Medical Council [2013] EWHC 1934 (Admin), the judge stated:
21. …at least some of the reasons why a public hearing is the default position are potentially of great importance … Those include (a) the deterrence of inappropriate behaviour on the part of the court or tribunal concerned and (b) the reduction or elimination of uninformed and inaccurate comment about the proceedings.
(10 July 2013)
There are some further cases that may assist in the analysis.
In R v Legal Aid Board ex parte Kaim Todner [1998] EWCA Civ 958, at paragraph 4, the Court of Appeal (judgment of the Master of the Rolls) stated,
The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.
(10 June 1998)
In Greystoke v The Financial Conduct Authority [2020] EWHC 1011 (QB), a case in which the Civil Procedure Rules apply (which is separate from the GMC Rules), exceptions were considered.
The Civil Procedure Rule (CPR) 39.2(3), which allows private hearings only if strictly necessary to secure the proper administration of justice, might provide some guidance. The court must be satisfied that one or more of the following conditions apply:
- Publicity would defeat the object of the hearing (CPR 39.2(3)(a)).
- The hearing involves confidential information (e.g., personal financial matters) and publicity would damage that confidentiality (CPR 39.2(3)(c)).
- The court considers it necessary for any other reason to secure the proper administration of justice (CPR 39.2(3)(g)).
The court must therefore carefully balance competing rights under Articles 8 (right to privacy) and 10 (right to freedom of expression) of the European Convention on Human Rights. Derogations from open justice should only be made if strictly necessary and proportionate, and less restrictive measures should be considered first. Additionally, the court may restrict access to certain documents or parts of documents under CPR 32.13(2) if they contain confidential information, personal financial matters, or other sensitive content. Non-parties may apply for access to such documents, but the court must hear from all parties before making a determination. (28 April 2020)
If you are a registrant facing a hearing and seek to hold it in private, we can advise on the evidence and legal arguments and provide representation services. Contact Doctors Defence Service on: 0800 10 88 739