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  6. Step 1 make findings of fact
Associates tribunal hearings

Step 1: make findings of fact

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Making findings of fact

  1. At stage one of an associates tribunal (AT) hearing, the AT will consider evidence provided by both parties (the GMC and PA or AA) to decide whether the allegations presented by the GMC are proved. This is known as making findings of fact. 

  2. To reach a decision the AT will apply the civil standard of proof. This means the AT must decide whether, on the balance of probabilities, the GMC is able to prove it is more likely than not that the matters occurred as alleged.  

  3. If the AT does not find the facts of the allegation(s) proved, the hearing will conclude with no action. In cases where the AT finds some, or all, of the facts are proved, they will go on to consider if the PA or AA’s fitness to practise is impaired.  

  4. An AT should approach fact finding by firstly identifying agreed facts and evidence. To reach a decision on the disputed facts, the AT should assess the evidence in the round. They should consider what conclusions and inferences can be drawn from the documentary evidence. Having done so, the AT should consider the available oral evidence and subject that evidence to critical scrutiny against the agreed facts and documentary evidence to consider a witness’ reliability and credibility. The AT should not decide reliability and credibility based on the demeanour of a witness alone.  

  5. The AT will always need to record reasons for their decision on facts. Where the AT’s approach to assessing the evidence departs from the principles in this part of the guidance, the AT must carefully explain how this is justified, given the specific circumstances of the case. They must also explain how the decision relates to any submissions made by the parties. 

The burden and standard of proof

  1. The burden of proof lies with the party asserting an allegation of fact. In proceedings before an AT, the burden of proof rests with the GMC. This means it’s for the GMC to prove the case they are presenting against the PA or AA. There is no burden on the PA or AA to prove or disprove anything. 

  2. To reach a decision on the facts, the AT will apply the civil standard of proof. This means the AT must decide whether, on the balance of probabilities, it is more likely than not that the specific matters occurred as alleged. 

  3. Where a PA or AA admits some, or all, of the alleged facts, these will be treated as proven. The AT only needs to decide the facts that remain in dispute between the parties (the GMC and PA or AA). 

Assessing the reliability and credibility of witness evidence

  1. The AT will need to consider the reliability and credibility of witness evidence to decide the factual allegations. Reliability relates to the inherent quality of a witness’ evidence and how accurate it is. Credibility is about whether the AT can believe a witness’ account based on the individual’s veracity or truthfulness. 

  2. It is important that the AT assesses the general reliability and credibility of each witness, especially when their accounts are central to the AT’s findings. 

Reliability

  1. An AT must make a rounded assessment of a witness' reliability, rather than approaching their reliability in respect of each allegation in isolation from the others.  

  2. When assessing the reliability of witness evidence, the AT should identify the consistent and inconsistent features of the evidence, including where inconsistencies are present any reasons given for them, and consider the impact those features have on the overall effect of the evidence.  

Credibility

  1. Credibility, however, can be divisible. This means it is open to the AT not to rule out the whole of a witness’ evidence based on lack of credibility.  

  2. A witness’ credibility should be tested by reference to any objective fact(s) that can be proven independently of their evidence, in particular by reference to documents available in the case. 

  3. The AT can consider how a witness presents during the hearing to assess their credibility. But a witness’ credibility should not be assessed exclusively on their demeanour when giving evidence. The confident delivery, or otherwise, of a witnesses’ evidence is not a reliable guide to whether they are telling the truth. Other information that may be relevant to the AT’s assessment of a witness’ credibility includes conflicts in evidence with agreed facts, documentary evidence or another witness, denials of the allegations and reasons why they could not be true, or admissions of lying (on oath or otherwise) on a previous occasion. 

  4. Good character is not a defence to the facts alleged. However, the AT must take good character evidence into account in their assessment of a witness’ credibility and propensity, where relevant. The assessment of whether a witness is of good character is made on the balance of probabilities, having considered all available information about the witness’ character. The weight to be given to a witness’ good character is a matter for the AT and should be explained in their written determination. The AT may consider that the weight given to an unblemished record may properly be less in the case of a PA or AA at an early stage in their career than a PA or AA with an established track record. 

  5. Cogent evidence of good character is relevant to the AT’s consideration of dishonesty. However, the significance of such evidence should not be overstated; it is not a defence to an allegation and should not detract from the primary focus on the evidence directly relevant to the alleged behaviour or poor performance.  

Hearsay evidence

  1. Hearsay evidence is a statement made, other than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated.2

  2. At an AT hearing, hearsay evidence may arise:
    • when a witness recalls an account given to them by a third party, ie it is second-hand evidence, and/or
    • where one party notifies the other that they require a witness to attend the hearing for cross-examination, but despite this request, the party fails to call the witness or the witness refuses or is unable to attend.
  3. Where a party fails to call a witness or the witness refuses or is unable to attend the hearing, the party who wants to rely on evidence contained in a witness statement will need to make an application to the AT to admit the witness’ statement as hearsay. However, in circumstances where the witness’ evidence is agreed, neither party will call or require a witness for cross-examination. This means the AT will have a copy of the uncontested witness statement; this is not classed as hearsay evidence.

  4. If the AT identifies hearsay evidence and no application has been made to admit it, the AT should invite the party seeking to rely on the hearsay evidence to make an application (if they are able to). In the absence of a specific application, the AT should still go on to consider whether it is fair to admit the hearsay evidence.

  5. When assessing whether it is fair to admit hearsay evidence, the AT should first consider admissibility and then consider the weight to be attached to the evidence, taking into account that it’s not been tested in cross-examination.

  6. To decide whether to admit evidence from an absent witness the AT should consider:
    • is there a good reason for the witness’ non-attendance and, consequently, for the admission of the absent witness’ untested statements as evidence?
    • does the evidence of the absent witness constitute the sole or decisive basis for a conviction or the factual findings?
    • are there sufficient counter-balancing factors to ensure a fair hearing?
  7. Where the AT is satisfied that it is fair to admit the hearsay evidence, they should adopt a careful balancing exercise when considering the impact and weight to attach to it, especially where it is key evidence for a particular allegation.

Inferences

  1. An inference is a conclusion that an AT reaches by a process of reasoning, including drawing on common experience, from primary facts ie facts which the AT has accepted based on documentary or witness evidence. As a general rule, an AT may draw such inferences as it considers appropriate from the primary facts.

  2. An adverse inference is where, because of the absence of certain evidence, the AT reaches a conclusion which is to the detriment of, or unfavourable to, the case of the party which could have provided that evidence.

  3. When making findings of fact, the AT may draw an adverse inference from:
    • the failure of a PA or AA to comply with a direction by the Regulator for information or to undergo an assessment
    • the failure of a PA or AA to attend the hearing, and/or
    • the failure of a witness, including the PA or AA, to give evidence or answer a particular question (provide relevant evidence).
  4. Where the general principles below apply, it is open to the AT to draw an adverse inference that a PA or AA who fails to attend the hearing or to provide relevant evidence has no innocent explanation for some, or all, of the primary facts alleged against them. For other witnesses who fail to provide relevant evidence, the AT may infer that they have no reasonable or credible explanation to give.

  5. If the AT does decide to draw an adverse inference, it will form only one part of the overall evidential picture. An adverse inference alone cannot amount to determinative proof of a fact alleged without other evidence.

  6. The AT’s decision whether to draw an adverse inference will depend on the facts of the individual case. An adverse inference should not be drawn unless:
    • Where the adverse inference relates to a PA or AA failing to attend the hearing or failing to provide relevant evidence, a prima facie case against the PA or AA has been established. This means that the GMC has presented sufficient evidence to establish the relevant fact(s) unless it / they are disproved or rebutted: the fact a PA or AA or their representative does not accept that there is a prima facie case is not a sufficient reason for them not attending the hearing, giving evidence or providing a witness statement.
    • The PA or AA or other witness has been given appropriate notice and warning that, if they do not attend and/or provide relevant evidence, an adverse inference may be drawn. A letter sent in advance of the hearing will usually be sufficient. However, it is open to the AT to repeat or reiterate the warning during the hearing if the individual attends.
    • The PA or AA has been given an opportunity to attend and/or a witness has been given an opportunity to provide relevant evidence or explain why it would not be reasonable for them to do so. Where a PA or AA does not attend, valid proof of service of the Notice of Hearing will usually be considered to provide sufficient opportunity to attend or explain why it would not be reasonable for them to do so. Where the PA or AA is present or represented at the hearing, is invited to give evidence and declines, this will usually be considered to provide a sufficient opportunity to provide relevant evidence or explain why it would not be reasonable for them to do so. Similarly, where another witness who is present at the hearing is invited to give evidence on a specific issue and declines, this will usually be considered to provide a sufficient opportunity to provide relevant evidence or explain why it would not be reasonable for them to do so.
    • The AT finds there is no reasonable explanation for the PA or AA not to attend and/or for a witness, including the PA or AA, to provide relevant evidence. If either no explanation or no reasonable explanation on behalf of the PA or AA or witness is provided, the AT should not speculate as to any possible reasonable explanation.
    • There are no other circumstances specific to the case which would make it unfair to draw an adverse inference. For example, where it is evident from the information available to the AT that a PA or AA has a health condition that impacts on their ability to attend a hearing (with or without reasonable adjustments), it may be unfair to draw an adverse inference from the PA or AA’s non-attendance.
  7. Where a party to the proceedings is present and/or represented at the hearing and the AT has considered these principles, the AT should make clear its decision, and the reasons for it, that either:
    • it would not be appropriate to draw an adverse inference, or
    • it may be appropriate to draw an adverse inference from the PA or AA’s failure to attend the hearing and/or a witness’ failure to provide relevant evidence. In doing so, the AT should make clear that it is not obliged to draw an adverse inference and the final decision as to whether it will draw such an inference will depend on the totality of the evidence when the AT comes to make its determination on the facts.
  8. If the AT concludes that it may be appropriate to draw an adverse inference from a PA or AA’s failure to provide relevant evidence and the PA or AA is present, the PA or AA should be given a further opportunity to provide the relevant evidence.

  9. Where an AT concludes that it will draw an adverse inference from a PA or AA’s failure to attend the hearing and/or a witness failure to provide relevant evidence, the AT should make clear in its determination on the facts what adverse inference has been drawn and why.

  10. It is for the AT to decide what weight to attach to the adverse inference being drawn. However, if a credible explanation for a PA or AA’s failure to attend the hearing and/or for a witness’ failure to provide relevant evidence was given, but fell short of amounting to a reasonable explanation, this may reduce the weight the AT attaches to the adverse inference.

Convictions, cautions and determinations

Convictions

  1. Convictions refer to a decision by a criminal court in the UK, or a finding by an overseas court of an offence, which, if committed in England and Wales, would constitute a criminal offence.  

  2. If the AT receives in evidence a signed certificate of a conviction, unless it also receives evidence to the effect that the PA or AA is not the person referred to in the conviction, then it must accept the certificate as conclusive evidence that the offence was committed.3 This means that the GMC does not have to re-prove the facts of the matter giving rise to the allegation. 

  3. However, before accepting a signed certificate of a conviction from an overseas court as conclusive evidence that the offence was committed, the AT must first be satisfied that the matter detailed in the certificate amounts to an equivalent offence in England and Wales. 

Cautions

  1. Cautions refer to offences committed in the UK or elsewhere but where no court proceedings took place because the PA or AA admitted the offence and criminal proceedings were considered unnecessary.  

  2. Paperwork showing that a PA or AA accepted a caution is not conclusive evidence that the offence was committed. However, the AT should have regard to the fact that in accepting a caution, the PA or AA will have admitted committing the offence. 

Determinations

  1. Determinations refer to decisions by another health or social care regulatory body, in the UK or elsewhere, that the fitness to practise of the PA or AA as a member of that profession is impaired (or an equivalent finding).  

  2. If the AT receives in evidence a signed determination, unless it also receives evidence to the effect that the PA or AA is not the person referred to in the determination, then it must accept the signed determination as conclusive evidence that the facts are as found by the determination.4 This means that the GMC does not have to re-prove the facts of the matter giving rise to the allegation. 

The AT’s determination on facts

  1. The AT should give clear and adequate reasons for its conclusions in respect of each allegation to enable the PA or AA, profession and members of the public to understand their decision.  

  2. Where an AT has concluded that it will draw an adverse inference from a PA or AA’s failure to attend the hearing and/or a witness’ failure to provide relevant evidence, the AT should make clear in its decision what adverse inference has been drawn and why. 

  3. The AT must also provide clear explanations about the evidence that they accepted and rejected which led to the factual allegation(s) having been found proven or not. This should include the AT’s assessment of the reliability and credibility of witness evidence. 

2 Civil Procedure Rules, Part 33.1(a).

3 Rule 21(3). 

4 Rule 21(4).