Abuse of Process and Stays in GMC & MPTS Cases

Abuse of Process and Stays 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 of concern, 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 for the time-being or at all.

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. The burden of proof is on the applicant doctor. It is therefore incumbent on the doctor to demonstrate that they cannot have a fair trial and, in doing so, they must set out in detail why there would be serious prejudice to them. 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 roles of ensuring public protection and upholding public confidence, while also maintaining professional standards) 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.

Appeals/Judicial Review

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 likely to be risky in many instances.

Illness

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.

Disclosure

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.

Delay

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.

Adverse Publicity

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 dispassionately assess the evidence, putting out of its mind potentially prejudicial and scandalising reporting. See: a case concerning BBC coverage: General Medical Council v British Broadcasting Corporation [1998] EWCA Civ 949 (June 1998).

Stays Where there are Concurrent Proceedings of Another Court on Relevant Issues

In a judicial review case R (T and I) v Financial Conduct Authority [2021] EWHC 396 (Admin)  the High Court Stayed the regulatory proceedings of the FCA until after the Commercial Court had determined issues that would be relevant to the FCA proceedings. It was held that the risk of prejudice to the applicant outweighed the public interest in hearing the FCA case promptly. The delay was not anticipated to be a long one, and so the Stay imposed was a temporary one. The FCA would also have the advantage of seeing the commercial court’s decision. In some instances, it may be possible to argue that the GMC or MPTS should put their investigations and proceedings on hold until the outcome of another regulator’s is known.

Generally

Stays and and Abuse of Process arguments need careful planning, and will need to be evidenced. The above summary is not exhaustive and the links, below, will assist doctors in considering whether to make an Abuse of Process or Stay application.