Adverse Inferences at the MPTS

In the cases of Jagjivan and Ross, I have just dealt with adverse inference issues in two cases in one month:   in both cases, the GMC applied to have adverse inferences drawn from the fact that my clients, the registrant doctors, elected not to give evidence. In both cases, the Medical Practitioner Tribunals (“MPTs”) were persuaded that it was not correct to draw such an adverse inference and in both they “dodged” the jurisdictional issue.

However, in GMC v Dr Kuzmin, which was heard at the same time as Jagjivan,  the MPTs concluded otherwise: that decision that they had the power to draw adverse inferences is now being judicially reviewed.

In Jagjivan, having acknowledged the lack of authority on the issue, the doctor’s right not to make a statement orgive evidence, the tribunal merely determined “that it was not appropriate to draw any adverse inference from Dr Jagjivan’s decision not to give evidence.” Ross presented an additional complication arising from the fact that it concerned a Scottish doctor in an alleged rape case. Under Scots law, all the ingredients of the offence of rape (and all sexual offences), including the fact of intercourse, must be corroborated by independent evidence. A doctor giving evidence could unwittingly provide such corroboration. It is trite law that at common law no adverse inferences may be drawn against a party or witness claiming privilege (Wentworth v Lloyd (1864) 10 HL Cas 589). That right has been restricted in England and Wales in various respects including in criminal cases (see s.35 of the Criminal Justice and Public Order Act 1994). Under Scots law, however, the right against self-incrimination both in police interview and in court is still absolute. So the drawing of an adverse inference from a doctor’s silence in regulatory proceedings by an MPT could undermine his/her rights in Scottish criminal cases. Thus arguably English/Welsh doctors are in a different position from Scottish doctors in so far as the right to silence is concerned.

The interesting legal point is: if there is any power to draw inferences, where does it derive from? In both my cases the General Medical Council’s (“GMC”)submissions on this point were vague and general. So let’s look at the options as follows :

- Statute – the Medical Act 1983 is silent on the point. Arguments praying in aid s.35 of the Criminal Justice and Public Order Act 1994 by analogy should fail because that only applies to criminal cases, and only English rather than Scots criminal cases at that.

- Inherent power – the right to silence is such a fundamental right that using an inherent power would not be appropriate. Regulators are creatures of statute and any inherent power should be confined to regulating their procedure. As such this is no answer.

- Civil law – such a power exists in civil proceedings– see Wisniewski v Central Manchester Health Authority [1998] PIQR. P324 CA per Brooke LJ at p340. However, such case law is not directly applicable to regulatory proceedings because they are not civil proceedings and different considerations apply.

- Regulatory case law – the issue of drawing adverse inferences has been raised in regulatory cases but only by obiter dicta  see(Muhammad Iqbal v Solicitors Regulations Authority [2012] EWHC 3251 para 25, 26, Ashiq v Bar Standards Board (2013) PC2010/0185/A para 9, Radeke v General Dental Council [2015] EWHC 778 (Admin) paras 7,8, Kearsey v Nursing and Midwifery Council [2016] EWHC 1603 (Admin) Ouseley J para 20).

- The 2004 FTP Rules - there is a power under R16A(2) to draw an adverse inference but only where there is a failure under R16A(1) to comply with the Rules.  As such the maxim of construction, expressio unius exclusio alterius (ie, if one is allowed to use it) should apply.  This means where a provision is expressed for one specific purpose it generally excludes it for all other purposes. 

- R34(1) FTP  - this allows admission of any evidence the MPTs regards as “fair and reasonable” irrespective of admissibility. The fact of silence per se cannot be “evidence” and so this is inapplicable.

There are good public interest arguments for allowing such an inference to be drawn in principle. An argument could easily be based upon the main objective, under s1(1)A of the Medical Act 1983 as amended, to protect, promote and maintain the health and safety of the public; the duty of co-operation under Good Medical Practice 2013 para 73; and/or similar reasoning to that in the civil case of Wisniewski.

However, any such express power should be achieved at a minimum by a rule change after the usual consultation and the passing of a statutory instrument or otherwise by a change to the Medical Act itself. One can imagine the consultation process would involve Scots lawyers pointing out how Scots doctors might be prejudiced by such a rule change.

The key point is that all doctors are entitled to know in advance of any hearing whether there is such a power, its basis and the regime which would be adopted regarding warnings and the like, as they do under the 1994 Act above. This would enable a registrant doctor to decide, on an informed basis, whether or not to make a witness statement and/or give evidence. As the law stands now the GMC is adopting a piecemeal approach: it is unfair for the matter to be left to individual tribunals who may make different decisions not just on the facts but on the principle itself and without the benefit of specific case law, rules or even guidance on the topic.