Regulation of Health and Social Care Professionals Consultation

Provisional Proposal 9-8: Other than on those matters specified in provisional
proposals 9-6 and 9-7, the regulators should have broad powers to make rules
on the constitution of their Fitness to Practise Panels.
CONDUCT OF HEARINGS
9.46 Most of the regulators have explicit and detailed rules governing the conduct of
hearings. These rules can cover the minutiae of fitness to practise procedures,
such as the way in which a registrant is notified of a hearing (for example, by
post) and the manner in which voting should take place (for example, by raising
hands). Our focus here is on certain broader issues of principle.
Health cases
9.47 Some regulators have a separate Health Committee to consider cases where the
registrant’s fitness to practise may be impaired due to health reasons. For
example, the General Chiropractic Council, General Dental Council, General
Osteopathic Council, Health Professions Council and Nursing and Midwifery
Council have a Health Committee, while others use a modified procedure for the
Fitness to Practise Panel.
Civil procedures
9.48 Proceedings before a Fitness to Practise Panel are civil in nature, although there
are differences between civil proceedings and fitness to practise proceedings as
highlighted by Sir Anthony Clarke MR in Meadow v General Medical Council:
In fitness to practise proceedings the Fitness to Practise Panel is
concerned to protect the public for the future and not to determine the
rights and obligations of the parties in the same way as in a civil
action. This introduces a further public interest which is not present in
the ordinary civil suit. 41
9.49 At most regulators the civil rules of evidence apply, whereby a Panel cannot
admit evidence that would not be permissible in civil proceedings, but at some
regulators the criminal rules apply. The relevant civil or criminal rules are those
that apply in the part of the UK in which the hearing takes place. However, the
strict rules of evidence do not apply to fitness to practise and Panels are given
discretion to admit a wide range of evidence. For instance, most of the fitness to
practise rules state that Panels can admit any evidence they consider to be “fair”
and “relevant” to the case before them, whether or not such evidence would be
admissible in a court of law. Where evidence would not be admissible, the Panel
cannot admit such evidence unless (sometimes on the advice of the legal
adviser) it is satisfied that their duty of making “due inquiry” into the case before
them makes its admission desirable. The regulators tend to rely on this rule when
for example applying to admit a witness statement when the witness is unable (or
unwilling) to attend and the Panels are asked to apply the appropriate weight to
the evidence.
41 Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] 1 QB 462 at [33].
169