When an employee is under regulatory or criminal investigation, how should their employer handle an internal disciplinary?
The claimant doctor was subject to investigation by the General Medical Council (GMC) in relation to an allegation of dishonesty. At the close of the GMC’s case on the facts, the claimant made an application of no case to answer, which was unsuccessful. Following this; he withdrew his witness statement and indicated to the Medical Practitioners Tribunal Service Panel (MPT), that he would not be giving evidence.
The GMC sought a ruling from the MPT that it had the power to draw an adverse inference from the doctor’s refusal to give evidence where charges had been laid against him.
The legal assessor’s advice to the MPT was that:
there was no precedent for the drawing of such an adverse inference in any proceedings before any of the healthcare disciplinary tribunals’ (para 18)".
Following submissions, the MPT determined that it had that power.
Before the Court, Counsel for the claimant accepted that section 35 of the Criminal Justice and Public Order Act 1994 changed the position in terms of adverse inferences in the criminal sphere; however that provision only applies to criminal proceedings. She submitted that (amongst other matters), the MPT reached a decision in relation to adverse inference for which there was no applicable statutory provision in the Medical Act 1983 or the GMC’s Fitness to Practise Rules 2004.
To clarify, the GMC’s Fitness to Practise Rules 2004 (Rule 16A(2)) allows the MPT to draw an adverse inference (after referral) where the doctor has failed to comply with the Rules or a direction issued. This clearly does not extend, upon the current construction of the rule, to all circumstances where a doctor decides not to give evidence.
In making its decision the Court considered the case law and statute. Lord Justice Hickinbottom stated as follows at paragraph 57:
…in my view, both principle and the authorities point away from Ms O'Rourke's submission: both favour the proposition that disciplinary tribunals have the legal power to draw adverse inferences from the silence of an individual charged with breaches of the regulatory scheme to which he or she is subject, even if in practice they have not in the past drawn such inferences in individual cases. That self-denying ordinance was, however, a matter of the tribunal's own procedure, and not a matter embedded in common law or otherwise required by law”.
The effects of this decision are not limited to regulatory proceedings. As covered in an earlier article, there is no strict requirement for disciplinary proceedings to be delayed until the conclusion of any criminal proceedings.
The result is an uncomfortable position where an individual’s silence may (properly) preserve their position in respect of a criminal case, but introduce the risk of an adverse inference being drawn in regulatory proceedings.
While both Kuzmin and Gregg set out broad safeguards, the practical implementation remains to be seen.
In Gregg, it is clearly stated that:
The court will usually only intervene if the employee can show that the continuation of the disciplinary proceedings will give rise to a real danger (and not merely a notional danger) that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene.”
The court went on to emphasise that a generic complainant about the process will not suffice. The ‘real danger’ must be specific to the particular circumstances of the case.
Inevitably, this sets a high bar as regulators may take confidence from the inherent safeguards built into criminal proceedings (such as the ability to exclude evidence) - it is not difficult to foresee circumstances in which the court concludes that an individual in regulatory proceedings can fairly be given a warning in respect of an adverse inference being drawn, even where there are extant criminal proceedings.
If the court were to proceed in this way, then there may be a need for an application to exclude that evidence from criminal proceedings. On its face, an application of this kind may have a good prospect of success. But, the determination would be case specific and, in any event, it is does not entirely dispel the risk as, even if the account itself was to be excluded from criminal proceedings, the police may use it to reveal lines of enquiry and to inform their investigation.
In circumstances where there is a discrepancy between the account given in the regulatory proceedings and then criminal proceedings, the risk is more acute as the regulatory account may stand a greater chance of being held admissible in the criminal case.
The result is that individuals facing both criminal and regulatory investigations will need to take holistic advice at an early stage to ensure that they consider and tackle any inadvertent difficulties that arise from their approach in either matter.
Shannett Thompson is a Senior Associate in the Regulatory Team. Having commenced her career in the NHS, she is a highly experienced lawyer taking the lead in defending health professionals before their regulatory bodies including the GMC. She has substantial experience in advising individuals in relation to their regulatory obligations in the wider context.
Matthew Hardcastle is an Associate in the Criminal Litigation team with experience in cases involving general and white collar crime. He has significant experience of advising clients during interviews and his experience includes advising high profile individuals and advising in matters which attract significant media interest.
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