Abuse of Process in GMC & MPTS Cases
Abuse of Process in GMC/MPT Proceedings
Where a regulator acts in a way that is oppressive or risks the registrant not being able to have a fair trial, a registrant may be able to argue that their case should be stopped, pending rectification of the issues, or altogether. The protective measure is considered to be one of last resort and arises from a tribunal’s inherent jurisdiction to protect its process from abuse. An abuse of process is rarely made because many shortcomings can be overcome through dialogue and agreement and exchange and disclosure of data. But every so often something will be so procedurally unfair or wrong that it would be utterly contrary to the interests of justice to proceed with the case.
An abuse of process argument is something that needs to focus on the fairness of the process. It is an exceptional remedy, not the rule. A tribunal must be satisfied that the doctor cannot have a fair hearing, as a consequence of serious prejudice. It is for the doctor to demonstrate that they cannot have a fair trial, and they must set out in detail why there would be serious prejudice. Alternatively, if there is another compelling reason that affects fairness or the tribunal’s sense of justice and propriety, when examining both the case for the prosecution and the case for the defence, the tribunal might in its discretion determine not to try the case.
The tribunal must also balance the interests of the GMC (in its public protection and upholding public confidence roles, while also maintaining professional tandards) when weighing up the arguments for and against each issue in the submissions. If a fair hearing is possible, a stay should not be granted. Certain modifications might be made to a hearing as a consequence of hearing the submissions, and an abuse of process can in any event be revisited as the case progresses through a hearing.
Where a tribunal declines to exercise its discretion in a doctors favour there is a right of statutory appeal that can examine such abuse of process matters. In some cases it may be necessary to apply for relief by way of judicial review mid-hearing, but this would be exceptionally rare and is risky.
It might be the case that a doctor is so unwell that they cannot participate in the proceedings at the time. Ordinarily, in such circumstances a hearing would be postponed until a doctor is well enough to attend. In rare cases, a doctor may be so unwell, such as being terminally ill, or being otherwise incapacitated, that they cannot participate. It would be a rare occurrence but it may be argued in such circumstances that it would be unfair for the case to proceed.
If documentation is in the GMC’s or another’s possession it may be argued that until disclosure has been given a fair trial cannot be held. Steps may need to be taken by a regulator to obtain relevant documents. A stay may be a short one, to allow for documents to be acquired and disclosed, before the case is again listed for a hearing.
Where there has been a significant delay in bringing the proceedings, there may be a valid argument against proceeding with a hearing but the fairness of the proceedings will depend on a number of factors, such as whether there has been a loss of documentation.
While a defendant might succeed in obtaining a stay in a jury trial where publicity has been so adverse that there is a real danger of a miscarriage of justice, the same does not automatically apply in regulatory cases. Where a professional tribunal is sitting, it is considered able to dispassionaetly assess the evidence, putting out of its mind potentially prejudicial and scandalising reporting. See: a case concerning BBC coverage ().
This summary is not exhaustive and the below links will assist doctors in considering whether to make an Abuse of Process application.