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It hasn’t been a straightforward year for the regulation of UK doctors.

First came the highly controversial decision by a medical disciplinary panel to strike-off Dr Waney Squier, a world-renowned neuropathologist who questioned the scientific basis of shaken-baby syndrome. Experts warned that the tribunal’s decision could have a chilling effect on persons who question mainstream scientific opinions.

Then came a legal challenge to the fairness of the tribunal’s procedure rules. The case, R (British Medical Association) v The General Medical Council and the Secretary of State for Health [2016] EWHC 1015 (Admin), was ultimately unsuccessful but raises important broader issues about the right to a fair trial in regulatory prosecutions.

Background
Doctors accused of being unfit to practice may be investigated by the General Medical Council (‘GMC’) and referred to a tribunal panel, comprised of three persons (one medical, one layperson and a chair).

Until recently, all panels were helped by a legal assessor, a qualified lawyer of at least 10-years standing who advised on the law but did not take part in the decision-making.

• Legal assessors must act fairly in delivering their advice. A number of previous cases demonstrate this. The parties should normally hear the legal advice given by the legal assessor to the panel and have the opportunity to provide the panel with their comment on the legal assessor’s advice before the panel makes its decision (Nwabueze v General Medical Council [2000] 1 WLR 1760).
• The fact that the legal assessor may give advice in private is not necessarily unfair. Whether a decision is unfair depends on the circumstances and, in particular, whether the advice that was given privately made a difference to the outcome of the case (Fox v General Medical Council [1960] 1 WLR 1017).

On 1 January 2016, the procedure rules changed and panels, now called ‘Medical Practitioners Tribunals’ (‘MPTs’), no longer require a legal assessor if the chairperson of the panel is legally qualified (the General Medical Council (Legal Assessors and Legally Qualified Persons) Rules Order of Council 2015 (SI 2015 No 1958)). The job of the legal assessor is now fulfilled by a legally qualified chair, if there is one on the panel.

Under the new rules, at paragraph 6(b), after all the evidence has been heard and once the Tribunal has started deliberating, a legally qualified Chair may give advice on the law to the other members of the panel in private without giving the Parties an opportunity to comment unless the Chair considers it necessary to give that advice in the presence of the Parties attending the hearing. The Chair’s legal advice should be recorded in the written decision of the Panel.

The legal challenge
In this case, the British Medical Assocation (a professional union for doctors) challenged the lawfulness of paragraph 6(b) of the rules because different procedures applied to legal assessors and legal Chair when advising panelists on the law. This, they argued, created a ‘two-tier’ system where panels with a legal Chair gave the Parties less of an opportunity to engage with the hearing than panels with a legal assessor. Such a system was an unlawful breach of the protected right to a fair trial in Article 6 of the European Convention on Human Rights, a breach of the common law right to a fair process and the discrepancy in the rules was irrational.

The case hinged on whether there was a breach of Article 6. The common law and rationality arguments added nothing that was not already contained within that right.

Findings
Mr Justice Hickinbottom rejected the BMA’s arguments.

The Court noted that it is common for tribunals in other areas of law (e.g. employment) to be comprised of both legally qualified Chairs and lay persons. Such Chairs may advise the lay persons on the law in private, unless for example a new or uncertain legal point arises and it would be unfair not to give the Parties the opportunity to comment on it (see paragraph 36 in the judgment).

The key issue was whether a legally qualified Chair giving advice to other panellists was acting in their capacity as a judicial decision-maker or as an ‘outsider’ akin to a legal assessor who takes no part in the decision.

The best authority on the point was In re Chien Sing-Shou [1967] 1 WLR 1155. That was a case where a legal adviser was on the panel of decision-makers for an architects’ disciplinary board. In the circumstances, the legal adviser is under the same duty to act judicially as the other panel members. The law of legal assessors does not apply to a person whose role attracts the same duties as Judges (see paragraph 43).

While the BMA relied on various documents that suggested that the legally qualified Chair wore two distinct hats: one as an advisor and another as a decision-maker, the Court disagreed and found that the rules did not create such a “schizophrenic quality”. The changes to the rules were intended to make the disciplinary panels more like other tribunals, which act judicially and are subject to the same duties of fairness that Judges must follow (paragraph 47).

Comment
This was an ambitious challenge.

Recent developments in the field of immigration law (Lord Chancellor v Detention Action [2015] EWCA Civ 840) suggest that toppling procedure rules on the basis that they create an unfair and unlawful system is a very difficult (though not impossible) task. Among other things, the challenger must establish that a system is inherently unfair – in other words, that the system cannot possibly be operated fairly.

While the Court reached its conclusion without reference to this demanding test, the fact that paragraph 6(b) allows for a legally qualified Chair to exercise discretion and to provide Parties with where “necessary” suggests that the system can address concerns about unfairness adequately and provides an additional ground on which the BMA challenge would have failed.

While it is not unusual to see written decisions by tribunals which discuss new legal points or cases that were not canvassed during the hearing, any tribunal that fails to give the Parties a fair chance to make submissions on such points leaves itself wide open to challenge on appeal or judicial review.
An earlier version of this article appeared on Ben’s blog Law, mostly.