Acting to stop harm: the FCA and Appointed Representatives
R (on the application of the British Medical Association) v General Medical Council
 EWHC 1015 (Admin)
The British Medical Association (BMA) challenged by way of judicial review a section of the new General Medical Council (GMC) rules in relation to legally qualified chairs.
Under paragraph 6(b) of the Schedule to the GMC (Legal Assessors and Legally Qualified Persons) Rules Order of Council 2015 (the 2015 Assessors Rules), a legally qualified tribunal chair, when giving other panel members legal advice, does not need to do so in the presence of all parties to the hearing. Instead, his/her advice can be outlined in the panel’s written decision.
The BMA argued that this breached the requirements for natural justice and/or the right to a fair trial under article 6 of the European Convention on Human Rights (ECHR). They also contended that it was irrational in drawing a distinction between advice given by a legally qualified chair and that given by a legal assessor.
Under the Medical Act 1983 (the Act), the GMC is charged with various functions, one of those being to investigate allegations that a doctor’s fitness to practise is impaired. If a referral is made to the GMC, case examiners are required to consider whether to refer the matter to what was called the Fitness to Practise Panel (FPP) (now called the Medical Practitioners Tribunal or MPT) to make a substantive decision on a case. The matter could also be referred to what was called the Interim Orders Panel (IOP) (now called the Interim Orders Tribunal or IOT). The IOT has the power to impose conditions on or suspend a doctor’s registration pending a substantive decision made by a MPT. An MPT or IOT is composed of three members, comprising of a chair, lay member and member of the medical profession.
Until this year, there was no requirement for any member of the panel to be legally qualified (although if a panel member is legally qualified, this did not prohibit him/her from sitting on a panel). The Act also required a legal assessor to be appointed to advise the panel on questions of law arising during a hearing.
Before 31 December 2015, the requirements in terms of legal assessors were governed by the GMC (Legal Assessors) Rules 2004 (the 2004 Assessors Rules). These rules set out the role of the legal assessor: to advise panels on questions of law, to intervene where s/he considered that there was a possibility of a mistake of law being made or where there was an irregularity in the proceedings and to assist with the drafting of decisions made by the panel (although legal assessors did not have any role in the decision-making itself).
The 2004 Assessors Rules provided that the panel was not permitted to hold a meeting or hearing in the absence of the legal assessor and that any advice given by a legal assessor during the course of the proceedings should be repeated in the presence of both parties. Although the 2004 Assessors Rules did not explicitly state this, the GMC and BMA agreed that, in practice the parties would be given an opportunity to respond to the legal assessor’s advice prior to the Panel making a decision.
The role of a legal assessor to a GMC disciplinary panel was considered by the Privy Council in Nwabueze v General Medical Council  1 WLR 1760. In this case Lord Hope stated:
“…the principle which lies behind the requirement that the parties should be informed of the assessor’s advice to the Committee is that of fairness, and that fairness requires that the parties should be afforded an opportunity to comment on that advice and that the Committee should have an opportunity to consider their comments before announcing their determination…the reason why the legal assessor’s advice to the Committee must be given or made known to the parties afterwards in public is so that the parties may have an opportunity of correcting it or of asking for it to be supplemented as the circumstances may require. In this respect the requirements of the common law would appear to be at one with those of article 6 of the Convention, by which the Professional Conduct Committee will be bound when the Human Rights Act 1998 comes into force….”
Reforming the fitness to practise adjudication process
On 31 December 2015, the 2004 Assessor Rules were revoked and replaced with the 2015 Assessors Rules. On the same date, the GMC (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015 (the 2015 FTP Order) came into force.
Article 13(3) of the 2015 FTP Order amends the Act by inserting a new paragraph (1B) into schedule 4. This makes a significant change to the GMC procedure in that it provides that if a chair is legally qualified, it is no longer necessary for a legal assessor to be appointed.
The BMA did not seek to challenge the introduction of legally qualified chairs as an alternative to legal assessors, but instead challenged paragraph 6(b) of the 2015 Assessor Rules, which provides:
6. Where, at hearing of a Tribunal, a legal assessor has not been appointed under paragraph 7(1B) of schedule 4 to the Act, and the Chair as a legally qualified person advises the Tribunal on any question of law as to evidence or procedure, the Chair shall –
(a) so advise in the presence of every party, or person representing a party, in attendance at the hearing; or
(b) if the advice is tendered after the Tribunal has begun to deliberate on any decision during the course of the proceedings, include the advice so given in the Tribunal decision, unless the Chair considers it necessary to advise in the presence of every party, or person representing a party, in attendance at the hearing.
Paragraph 6(b) of the 2015 Assessors Rules therefore provides that when a legally qualified chair gives legal advice to other members of the tribunal panel in private once deliberations had begun, s/he is not obliged to inform the parties in the case of that advice so that they can comment on this. That advice can simply be included in a tribunal’s decision, unless the legally qualified chair considers it necessary to give advice in the presence of all parties at the hearing.
Arguments for judicial review
The BMA sought to challenge paragraph 6(b) of the 2015 Assessors Rules on the basis that it was a breach of article 6 of the ECHR.
It was argued on behalf of the BMA that a legally qualified chair has two roles:
“First, he is a decision-making member of the tribunal and, as such, with the other panellists, he is responsible for determining issues before the tribunal, including questions of law and procedure. However, second, he is the legal advisor to the tribunal and, as such, has the function of formally advising the tribunal of matters of law and procedure. The roles are discrete; and, when a legally qualified chair performs the latter, he undertakes exactly the same role as a legal assessor, subject to the same jurisprudence and constraints. Therefore, when he advises the tribunal deliberating in private, in accordance with cases such as Nwabueze, the parties in attendance must be given an opportunity to comment upon – and, if appropriate, challenge – the advice given.”
Justice Hickinbottom rejected the BMA’s argument. He referred to the fact that there are several tribunals comprising of legally qualified and non-legally qualified members which do not share with the parties all legal opinions and advice given by the legally qualified member. (For example Employment Tribunals, various chambers of the First-tier Tribunal and also a Crown Court comprising a county court judge and lay magistrates.) He concluded from this that:
“…where a tribunal includes a legally qualified individual as a full decision-making member of its constitution, that person is able to give a view on the law to the other members, without advising the parties of that view – subject to the usual constraints that apply to any person exercising a judicial function (e.g. the requirement to give reasons for a decision, including material propositions of law; and the requirement to give parties an appropriate opportunity to comment upon any material proposition of law). It cannot be suggested that hearings before such tribunals are necessarily rendered unfair and in breach of article 6 simply because a legal member gives a legal opinion or advice to other members of the tribunal in private.”
Justice Hickinbottom also referred to the fact that paragraph 6(b) does allow a chair to communicate his/her advice to the parties in advance, if s/he considers it necessary and “It would of course be necessary if it would be procedurally unfair not to give the parties such an opportunity, e.g. if it concerns a relevant point of law upon which no submissions have been made and which is (or may be) controversial and material.” This caveat makes explicit what is implicit under section 6 of the Human Rights Act, that as a body exercising public functions, the tribunal must ensure that the hearing complies with article 6 of the ECHR.
Justice Hickinbottom rejected the argument that a legally qualified chair has two functions. Instead he stated that “Usually, where the legally qualified person is a full member of the tribunal, whilst no doubt giving legal advice to the other members, he will occupy a different role from a legal assessor who stands outside the decision-making tribunal…a legal adviser can be said to “give advice” to other members of a tribunal panel where he himself is a full member of that panel, and that does not thereby attract the jurisprudence that has built up around assessors who are outsiders.”
For these reasons, the BMA’s challenge was rejected and it was held that paragraph 6(b) is not unfair or contrary to Article 6 of the CHR.
The removal of the requirement for legal advice to be communicated to the parties before a panel makes a decision may, at first blush, seem unfair. It would seem that parties would be denied the opportunity to challenge any legal advice which has informed the panel’s decision without resorting to an appeal. However, the caveat in the rules, allowing the advice to be communicated if the chair considers that to be necessary, will hopefully provide a safeguard against unfairness. Clearly any significant or controversial advice should be communicated to the parties in advance: if this advice is given to the parties for the first time in the written decision, there could be good grounds for a challenge to the decision. However, there is an inherent risk in entrusting legally-qualified chairs to make the decision as to whether advice is sufficiently substantial or controversial to merit advance notification to the parties. If this discretion is not exercised properly, it may lead to an increase in appeals which could have easily been avoided by discussing and, if necessary, correcting any legal advice during the course of the hearing.
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