Procedural matters relating to tribunal hearings

Representation at hearings

Doctors have the right to a fair hearing if a public authority is making a decision that has a decisive impact on their civil rights or obligations.¹³ This may include the right to appoint appropriate representation at a hearing.
At a tribunal hearing a doctor may be represented by:

a solicitor or counsel¹⁴ (legal representative)
a representative from any professional organisation of which they are a member (professional organisation), or
at the discretion of the Tribunal or the Committee, a member of their family or other suitable person (suitable individual).¹⁵

However, a person who is due to give evidence at the hearing¹⁶ cannot represent the doctor at that hearing or accompany them in the hearing room prior to giving evidence.
Where the doctor is not represented during the hearing, then the tribunal will assist to ensure that the doctor understands the hearing process at each stage. In doing so, the tribunal should make it clear what stage of the process the hearing is at, what is required of the doctor at each stage and clarify the legal position in plain English. The tribunal may also direct the doctor to any relevant guidance.

Requirements for representation

present the doctor’s case to the tribunal with honesty and integrity, and
understand the hearing procedure and carry out their role fairly and effectively, ensuring in doing so that they are mindful of the GMC’s legal role to protect the public and the obligation of the MPTS to deal with cases fairly and justly.

A solicitor or counsel who wants to represent a doctor before the tribunal as a legal representative must be registered to practise in England and Wales, Scotland or Northern Ireland. Annex A sets out the criteria for legal representatives to show they meet these requirements.
Where the tribunal is not satisfied that an individual meets the requirements in Annex A, an application can be made for that person to represent the doctor as a suitable individual (see paragraph 28 below).

Relevant professional organisations who may represent a doctor before a tribunal include trade unions and established medical defence organisations. Annex B provides details of the professional organisations recognised by the MPTS and GMC for the purposes of representing a doctor at a tribunal hearing.
Where a doctor wishes to be represented at a hearing by a person from a professional organisation not listed in Annex B, an application can be made for that person to represent the doctor as a suitable individual (see paragraph 28 below).

In all cases where the tribunal allows a person to represent a doctor as a suitable individual, that individual will be expected to treat other hearing participants with respect, engage constructively in the hearing process and not behave in a way that obstructs or frustrates the tribunal’s ability to make progress.
If a person behaves in a manner contrary to the expectations of a suitable individual the tribunal is entitled to revisit its assessment of suitability and decide that the person is no longer a suitable individual and is no longer permitted to act as a representative in the proceedings.
Where a person has supported a doctor during a fitness to practise investigation, it does not necessarily follow they are a suitable individual to provide representation at a hearing.
The tribunal can be asked to exercise their discretion to allow a person to represent a doctor as a suitable individual at any stage of the hearing. Any person who intends to apply to act as a suitable individual should familiarise themselves with the factors outlined in Annex C and declare any matters that would assist the tribunal reach a decision about their suitability.
In the absence of any factors indicating that a person may not be suitable, the MPTS will automatically recognise the following as being suitable individuals:

a chartered legal executive registered to practise in England and Wales, or
a solicitor or counsel registered to practise and regulated in specific jurisdictions outside of England and Wales, Scotland or Northern Ireland.

Annex C sets out the criteria for a person to show they meet these requirements, along with the factors that may indicate a person is not a suitable individual.
In all cases where a person does not meet the criteria to be automatically recognised as a suitable individual, the tribunal must balance the interests of the doctor in being represented by a person of their choice against the need to ensure that the hearing proceeds fairly and expeditiously.
Before agreeing for a person to act, the tribunal should check that the prospective suitable individual understands the requirements of this guidance and consider all the information available to satisfy themselves there are no issues with that person participating in a hearing.
In making their decision, the tribunal must have regard to:

the importance of the hearing for the doctor
the complexity of the issues to be considered at the hearing
whether the person will be able to present the doctor’s case with honesty and integrity
whether the person can understand the hearing procedure and is able to carry out their role fairly and effectively, and
the need to safeguard the efficient use of hearing resources.

The decision as to whether a person is a suitable individual is one for the tribunal’s judgment alone. However, the existence of one or more of the factors at Annex C may indicate that a person is not a suitable individual.

¹³See Article 6 of the European Convention of Human Rights, incorporated in Schedule 1 of the Human Rights Act 1998.

¹⁴Also known as an advocate and/or barrister.

¹⁵Rule 33 (1).

¹⁶Rule 33 (2).