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GMC's MPTS tribunals can draw ‘adverse inference’ if doctors do not give evidence

Negative conclusions can be drawn by the GMC's medical practitioners tribunal service (MPTS) panel if doctors decide not to testify or give evidence in their disciplinary tribunal, the high court has ruled.

In the case of R Kuzmin v GMC, the high court ruled that the GMC's MPTS could draw ‘adverse inference’ due to the GP’s lack of statement to explain his actions.

The judge added that the GMC should consider publishing advice for doctors on this subject.

Dr Kuzmin was initially accused of poor record keeping and use of EMIS when working in GP out-of-hours service Hampshire Doctors, as well as missing a referral during the earlier part of his training.

The GMC opened an investigation into the doctor and conditions were placed on his registration. However, Hampshire Doctors was not notified of these changes, which resulted in further tribunal proceedings on the grounds of dishonesty.

The GP filed a statement saying he was not dishonest, however later applied to withdraw this statement.

The GMC said the tribunal should draw adverse inference from the GP’s refusal to give evidence, which the medical practitioners tribunal agreed with. The GP challenged this decision in the high court, however the judge ruled it was acceptable to draw ‘adverse inference’ from a lack of statement.

Lord Justice Hickinbottom said: ‘An MPT panel therefore has the power to draw an adverse inference from the failure of a charged person to give evidence at all or in relation to a particular issue/question, without any express sanction by statute, statutory instrument or GMC guidance/policy; and without any express guidance on how that power should be exercised.

‘However, that does not mean that, for the avoidance of doubt, guidance from the GMC (and other regulators of, amongst others, the healthcare professions) confirming the existence of the power and how it might be used would not be useful for disciplinary tribunal panels and the practitioners who might appear before them: such guidance, which might be short, could clearly be of considerable practical assistance.

‘Speaking for myself, I hope that, after any consultation they deem helpful, the regulators will consider publishing such advice as they each consider appropriate.’

Senior associate at law firm Kingsley Napley, Shannett Thompson, said the GMC would have to send 'clear notices' to doctors ahead of future hearings. 

She said: 'The GMC needs to consult on, and produce a statement or guidance as to how it will approach cases in future where the doctor refuses to give evidence after a charge has been levelled against them. Whilst in "Kuzmin" the court pronounced some factors which should be borne in mind by tribunals when they consider whether or not to draw an adverse inference, it is not sufficient that a case-by-case approach is taken given the importance of this issue.

'Further, the GMC will have to send clear notices to doctors ahead of any substantive hearing setting out that tribunals may be asked to draw an adverse inference in circumstances where they refuse to give evidence and there is no reasonable explanation given, or the explanation given is rejected by the tribunal.

'This means, at present, the position for doctors is uncertain, and legal advisors will need to ensure that they appropriately advise clients about the possible ramifications in relevant cases.'

A GMC spokesperson said: ‘This judgment has provided helpful clarity that Medical practitioners tribunals can draw inferences from silence in limited but appropriate circumstances.

‘We are working with the MPTS to draft guidance to help tribunals interpret the ruling.'

 

Readers' comments (14)

  • Bob Hodges

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  • Dear All,
    So the concept of "absence = omission" has been assumed by the GMC, our law makers. Everywhere else in the world absence of evidence does not equate to evidence of absence.
    When will the GMC understand its requirements under Human Rights Regulations?
    Regards
    Happy to be identified
    Dr Paul Cundy
    GMC 2582461

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  • Medics dont have human rights we all know that.We have a vocation and committment which has and continues to be abused.Good will gone relationship between medics and state run monopoly broken.Yet another addition to the continued abusive relationship.

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  • Hi Paul
    I would normally agree with you but the courts are being consistent.
    Failure to testify can lead to a negative inference for good reasons

    Failure to testify Under Clause 5 of the Domestic Violence, Crime and Victims Bill The Domestic Violence, Crime and Victims Act 2004. The new offence of causing or allowing the death of a child or vulnerable adult. Paediatrician Dr Jean Price notes in the NSPCC report Which of You Did It? Among them was a manslaughter charge against a couple named Lane, which was quashed in 1987 because it was not possible to prove who was present when a single blow killed their 22-month-old baby. They were instead convicted of child cruelty. Another problem is that parents often exercise their right to silence, although attempts to remove this right in cases of child death have foundered against human rights legislation. The John Smith Case Four-year-old John Smith died on Christmas Eve in 1999 from a severe brain haemorrhage, in the care of his foster parents Simon and Michelle McWilliam. There were 54 injuries on his body, including cuts to his penis, burns on his face and three adult bite marks. A murder trial failed at the committal stage because it was not possible to prove which guardian was responsible. The McWilliams were eventually jailed for eight years for child cruelty and neglect. A court report found that social workers failed to get doctors to examine his injuries on at least seven occasions because they were led to believe he was self-harming. The case received massive publicity in the local press in Brighton, which had been campaigning for a change in the law since a similar murder trialcollapsed in 1997. In that case murder charges were dismissed against a couple accused of killing three babies, two of them their own children, by suffocation. Both were given two-year sentences for cruelty and neglect.

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  • Vinci Ho

    I think without all the details of the case , we need to be careful how and what we would want to comment on this case . This is a deliberation from a high court judge and one should not fall into the trap of ‘contempt if court’ by being too insouciant in commenting . After all , rule of law is still one of the pillars we can believe in western democracy.
    My motto is , always , discern all the facts from the matter before applying one’s principles and morality (emotions as well ) . It is before NOT after .......

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  • The courts were right with Dr BG not!The law is proven to be an ass in medical matters already.Do you have faith in the British legal system.I do not.

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  • Took Early Retirement

    Odd, because in most cases the accused CAN be silent with no adverse inference.
    The failed murder cases wouldn't happen now, as "common cause" could be used. Non?

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  • In fact, the UK does have laws that protect against self-incrimination. In other common law jurisdictions, they vary according to local law.

    Privilege against self-incrimination, under common law and section 14(1) of the Civil Evidence Act 1968, a party may claim privilege against self-incrimination if compelled to disclose information that would tend to expose them to criminal proceedings for an offence or the recovery of a penalty. The risk of incrimination must be real and not remote or insubstantial.

    The privilege against self-incrimination exempts a person from being compelled to answer a question when called as a witness, produce documents or provide information which might incriminate him in criminal proceedings and/or expose him to a penalty in England and Wales. It is based on common law privilege (Versailles Trade Finance Ltd (in administrative receivership) v Clough [2001] EWCA Civ 1509) and section 14(1) of the Civil Evidence Act 1968 (the CEA 1968).

    In fact, in a civil case, where a defendant can show that there is a real risk of serious prejudice which may lead to injustice, the civil court has the jurisdiction to stay the civil proceedings until the related criminal proceedings have been concluded (Jefferson Limited v Bhetcha [1979] 1 WLR).

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  • AL "4 TRIES IN ONE GAME" BUNDY

    it may be a big drag to have to attend a hearing..
    take the whole day off loss earnings
    get a locum etc
    ... but you do have to defend yourself.
    .. you can file documents and your personal statement in writing to be read out in your absence..
    OOH is very high risk and very busy
    no notes = no defence

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  • AL "4 TRIES IN ONE GAME" BUNDY

    Being very busy and understaffed is no defence when an adverse outcome occurs

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