The death of the ‘right to silence’ in regulatory proceedings?
9 August 2019
Two recent cases have important consequences for regulated professionals who fail to participate in regulatory hearings. In Kuzmin v. GMC  EWHC 2129 (Admin) the issue was whether a tribunal can draw adverse inferences if a doctor declines to give evidence. Sanusi v. GMC  EWCA Civ 1172 concerned the tribunal’s duty of procedural fairness where a professional fails to attend the hearing at all.
Kuzmin v. GMC
The Claimant was a GP who faced an allegation of dishonesty. It was alleged that he had failed (dishonestly) to draw his employer’s attention to conditions imposed by the Interim Orders Tribunal. The doctor failed in his half-time submission of no case to answer. The doctor then indicated that he would not be giving any evidence and applied to withdraw his witness statement. The GMC sought a preliminary ruling that, as a matter of principle, the Tribunal had the power to draw adverse inferences in such circumstances. The Tribunal agreed, whereupon the Claimant sought an adjournment and applied for judicial review.
The Claimant’s Argument: Common Law Protection
The doctor relied heavily upon an analogy with the criminal law. In criminal proceedings, there was a well-recognized privilege against self-incrimination. This was supplemented at common law with a further right: no adverse inferences could be drawn from the exercise of the right to silence. As regulatory proceedings were properly regarded as “quasi-criminal” it followed that similar standards of procedural fairness were required.
In criminal proceedings Parliament had intervened to enable a Court to draw such inferences as appeared proper from an accused’s failure to give evidence (Criminal Justice and Public Order Act 1994, s.35 ). However, there had been no such statutory intervention in GMC proceedings. Nor had the GMC or MPTS issued any guidance or policy that would abrogate the common law position. Accordingly, the doctor should retain the full protection of the common law in respect of the “right to remain silent”.
Judgment: The Power to Draw Inferences
The Divisional Court rejected the Claimant’s case in emphatic terms. First, a fact-finder could draw such inferences as it considered appropriate from the primary facts. This was implicit in the power to make factual findings from the evidence without the need for any express power. Where an accused had a case to answer but remained silent, inferences might flow from the “normal processes of reasoning and common sense”. It may be reasonable to infer that the accused was unable to answer the accusation.
Second, the common law protection available to defendants in criminal proceedings (prior to the 1994 Act) did not apply in regulatory proceedings. Regulatory proceedings were not criminal proceedings or even “hybrid” proceedings (see ex parte Fleurose  EWCA 2915 and Panjawani v. RPhC  EWHC 1127).
Third, the Court had not suggested in other regulatory cases that there was any common law prohibition against drawing inferences from silence: see Iqbal v. Solicitors Regulatory Authority  EWHC 3251 (Admin) , Kearsey v. Nursing and Midwifery Council  EWHC 1603 (Admin), Radeke v. General Dental Council  EWHC 778 Admin, Panjawani v. Royal Pharmaceutical Council  EWHC 1127.
Finally, there was a general burden upon regulated professionals to engage with their regulator and to assist with the resolution of allegations made against them. This was underscored by the guidance in Good Medical Practice which obliged doctors to co-operate with formal inquiries and complaints. Therefore, permitting tribunals to draw inferences from the silence of professionals was in the public interest.
Inferences and Procedural Fairness
However, whether it was appropriate to draw an adverse inference would be “highly dependent upon the facts of a particular case”. Generally no inference should be drawn unless :
- a prima facie case to answer has been established;
- the individual has been given appropriate notice and an appropriate warning that, if he does not give evidence, then such an inference may be drawn and an opportunity to explain why it would not be reasonable for him to give evidence and, if it is found that he has no reasonable explanation, an opportunity to give evidence;
- there is no reasonable explanation for his not giving evidence; and
- there are no other circumstances in the particular case which would make it unfair to draw such an inference.
Sanusi v. GMC
In Sanusi, a doctor failed to attend an MPTS hearing concerned with his clinical competence and integrity. He stated that he could not afford the cost of legal representation and had a conflicting commitment to his General Practice training programme. He did not apply for any adjournment and the Tribunal therefore proceeded in his absence. It found subsequently that his fitness to practise was impaired and imposed a sanction of erasure from the register (i.e. he was ‘struck off’).
The doctor appealed on two grounds. First, that the Tribunal should have notified him of its findings on misconduct and given him a further opportunity to make submissions, by adjourning the hearing, before proceeding to deal with sanction. Second, it was argued that the hearing was procedurally unfair because the doctor had provided relevant documentary evidence to the GMC. Some of these documents had not been forwarded by the GMC to the Tribunal and had not been taken into account when considering sanction.
The Court of Appeal held that here was no general duty upon the MPTS to provide a voluntarily absent doctor with an opportunity to make submissions in mitigation of sanction following adverse findings of misconduct/impairment. Such an obligation would give rise to a “culture of adjournment” causing unacceptable costs and disruption. Where a registrant failed — without good reason — to attend a hearing they must be taken to have appreciated the loss of their right to participate.
However, the failure of the GMC to forward relevant documents to the Tribunal constituted a breach of the principles of natural justice. Where a registrant was absent, both the GMC and MPTS should take steps to ensure that all relevant mitigation material was before the panel at the sanction stage. However that obligation was not unlimited:
It does not require extensive trawls through archives, nor extend to sifting through large quantities of unindexed or uncategorised documentation provided by a registrant to determine what if any relevance it may have. The obligation extends only to reasonable searches for material that is objectively viewed as relevant.
On the instant facts, the missing documents did not give rise to a realistic prospect of a different sanction. Accordingly, the appeal was dismissed.
The decision in Sanusi marks a significant departure from the generous approach to absent practitioners adopted previously in cases like Sukul v. BSB and Lawrance v. GMC . The Courts had previously emphasised the need to afford professionals with every opportunity to make representations, if necessary by adjourning the proceedings, before imposing serious sanctions. In future, absent professionals will need to make a formal application for an adjournment supported by evidence. Those who fail to take such steps risk serious sanctions without any further right to make representations.
Practitioners who elect not to give evidence also do so at their peril. However, the Court’s judgment in Kuzmin does not resolve exactly how the power to draw adverse inferences will be applied in practice.
First, what counts as a “reasonable explanation” for failing to give evidence? In criminal proceedings no adverse inference may be drawn if “it appears to the Court that the physical or mental condition of the accused makes it undesirable for him to give evidence” (section 35 (1) (b) of the Criminal Justice and Public Order Act 1994). This applies not only where giving evidence would have an adverse effect on the accused’s health. It also applies where, for example, a brain injury or psychiatric condition adversely affects the accused’s memory or his/her capacity to give evidence (see R v. Dixon (Jordan)  EWCA 465). A similar approach should apply in regulatory proceedings. However, how serious must a condition be before it will displace an adverse inference? This remains to be seen.
Second, apart from ill-health cases, when else would it be “unfair” or inappropriate to draw an inference: what will suffice as a good excuse for failing to take the stand? The Court was not prescriptive. This was a matter for the judgment of the Tribunal on the particular facts. The Court observed that it would be useful for the GMC and other regulators to provide published guidance about how the power to make adverse inferences will be exercised in future cases. We should expect the GMC and MPTS to heed the call. The future of the right to silence therefore remains, at least to some extent, in the hands of the regulators.
Robert Kellar QC is a barrister at One Crown Office Row with expertise in regulatory matters.