Adjournments

56. When considering an application to adjourn an interim measure tribunal (IMT) hearing, the IMT should consider the circumstances in the individual case, the submissions made by both parties and the following non-exhaustive list of factors:
• whether the hearing can fairly proceed, including the effect any delay may have on the fairness of the proceedings and on fairness to all parties


• the need for urgency, including the potential risk to members of the public, the public interest and/or to the PA or AA’s interests, and whether the benefit of granting the application outweighs the effect of a delay on both the responding party and the public interest in hearings proceeding as soon as is fairly possible


• the remit of the IMT being to assess the risk of the PA or AA remaining in unrestricted practice, and not to make findings of fact – this factor will be particularly relevant where a request is based on the need to prepare or to obtain further evidence or await the outcome of other proceedings, where the reasonableness of such a request will also be an important factor


• the ability of the IMT to undertake an early review hearing where new information becomes available after the scheduled IMT hearing


• where a request is based on a representative’s availability, the complexity of the case and the nature and extent of that representative’s prior involvement


• where a request is based on a participant’s health, whether independent medical evidence has been provided confirming any relevant medical condition and why that condition prevents participation in the hearing


• in review hearings, whether granting the application would prevent review of the interim measure in compliance with statutory requirements, and


• any other relevant considerations.

57. When considering an application to adjourn an associates tribunal (AT) hearing, the AT should consider the circumstances of the individual case, the submissions made by both parties and the following non-exhaustive list of factors:
• whether the hearing can fairly proceed, including the effect any delay may have on the fairness of the proceedings and on fairness to all parties


• the impact and relevance of other ongoing legal proceedings, including criminal proceedings or Coroner’s inquests


• whether the benefit of granting the application outweighs the effect of delay on the responding party, any witnesses and the public interest in hearings proceeding as soon as is fairly possible


• where a request is based on the need to prepare or to obtain further evidence, the reasonableness of such a request, taking account of the reasons provided, the length of time since the relevant event(s) and the time already afforded to parties to prepare


• where a request is based on a representative’s availability, the complexity of the case and the nature and extent of that representative’s prior involvement


• where a request is based on a participant’s health, whether independent medical evidence has been provided confirming any relevant medical condition and why that condition prevents participation in the hearing


• whether the PA or AA is subject to an interim measure


• in review hearings, the expiry date of the PA or AA’s existing final measure and whether granting the application would prevent review of the final measure before expiry, and


• any other relevant considerations.

58. In all cases, where there is unlikely to be a change in position later if the application for an adjournment is granted, this will weigh towards refusal.


59. The tribunal may decide on its own to adjourn a hearing once it has started. This may be necessary where the hearing will not be able to be concluded within the period listed and additional time is needed for the tribunal to reconvene and complete matters.


60. In AT hearings, an adjournment may be required to allow for an assessment to be completed or for the parties to obtain further information or reports.

61. When making decisions during a hearing, the tribunal may request that further information is obtained by the Regulator, where that information is relevant to their consideration of the case. At the initial assessment stage relevant evidence will have been gathered by the Regulator with the aim of enabling a fair outcome to be reached. Specifically, where the outcome of an assessment of a PA or AA’s health, performance or knowledge of English is likely to be relevant to the consideration of a concern, an assessment will usually have been directed during the initial assessment. However, the ability to request further information allows a tribunal to seek any clarification needed to support them to make a fair decision.


62. It may be reasonable and proportionate for a tribunal to request further information in circumstances where:
    1. the PA or AA previously offered to provide information which was not sought by the Regulator at an earlier stage of the fitness to practise process, but the tribunal considers it is likely to be relevant to their decision and reasonably capable of influencing their assessment of the case; or
    2. information comes to light for the first time that suggests the PA or AA might be unwell.
63. Where information comes to light that suggests a PA or AA might be unwell, it is likely to be appropriate to request further information where objective evidence is needed to assess the impact of the PA or AA’s health condition and whether it’s likely to have a direct impact on their ability to participate effectively in the hearing process.


64. It is also likely to be reasonable and appropriate for a tribunal to request further information where there is new information that suggests the concern about the PA or AA’s behaviour, or performance may be linked to the impact of a health condition. This is because the assessment of any current and ongoing risk to public protection, and the proportionate response to address any such risk, may be informed by whether there is a cogent link between the impact of a health condition and a PA or AA’s performance or behaviour.


65. The tribunal’s reasons for requesting further information will need to include an explanation of why they consider it is necessary to make the request and explain how it is relevant to their consideration of the allegations. The question of what steps to take to obtain further information will be decided by the Regulator, having regard to the tribunal’s reasons for requesting it, and in the interests of fairness, ensuring that the information is shared with the PA or AA (and any other relevant party).


66. The nature of the further information or reports required by the associates tribunal (AT) may vary, and as such, so will the timescales for obtaining them. However, tribunals should consider:
    1. the stage the hearing has reached
    2. the nature of the alleged impairment
    3. the nature of the further information or reports to be sought, and
    4. the likelihood of the PA or AA complying
67. Where the AT receives information about an existing health condition or receives new information during the hearing that suggests a PA or AA might be unwell, they should be mindful of the need to ask appropriate questions of the PA or AA or, where appropriate, to issue case management directions to require the parties to obtain relevant information, for example from treating healthcare practitioners or others already involved in the PA or AA’s care, to aid their consideration of whether to adjourn for further information or reports.


68. When adjourning for further information the AT may want to provide the parties with case management directions to provide such further information as it would assist the tribunal to see when the hearing reconvenes. If adjourning for reports, the AT may wish to consider whether there are any specific questions that it would assist for the reports to address. These considerations will be particularly relevant when adjourning for further information or reports about a PA or AA’s health. Where appropriate, any such questions may be informed by hearing representations from the parties.


69. When deciding whether an adjournment is necessary to obtain further information or reports about a PA or AA’s health condition, the AT should remember that, whilst certain behaviours can be related to the impact of a health condition, they can also be capable of arising generally in stressful and/or upsetting situations. In each case, the AT will need to weigh up all the available evidence, including whether the behaviour, or combinations of behaviour, being exhibited by the PA or AA create a cause for concern about their health.


70. Annex D contains information about the types of behaviour that may suggest an individual is unwell. In addition, a perceived deterioration in, or apparent lack of knowledge of, English language may be symptomatic of an undiagnosed health condition or the deterioration of a diagnosed health condition. Health conditions which may impact on a PA or AA’s communication skills include neurodegenerative disorders and acquired brain injuries from either a traumatic or non-traumatic event.


71. The AT must provide reasons for its request for the Regulator to obtain further information or reports, in a formal determination. Within the determination, they should explain the requirement for the assessment or further information or reports, giving clear reasons. When requesting further information or reports, the tribunal’s determination should also clearly set out the potential consequences of non-compliance.


72. The AT may also wish to consider issuing case management directions, with specific timescales, in relation to further information or reports. This will make it clear to each party what they must do and will assist the tribunal to determine the issue of compliance at the reconvened hearing.


73. Where further information is obtained and supplied to the tribunal, as with other available evidence, the tribunal must consider and assess the information. In circumstances where further information cannot be obtained and supplied, this should be noted, along with the reasons why and any impact the tribunal considers it has had on their decision.

74. The associates tribunal (AT) must ensure that every effort is made to reconvene as soon as possible to ensure that the matter is dealt with in a timely manner. In considering when to reconvene, the AT must consider the time reasonably required for the information to be obtained and for the parties to consider the implications of the information, as well as the availability of those involved in the hearing. Further guidance about relevant considerations when determining dates to reconvene can be found in the guidance on Listing reconvening hearings.


75. In some cases, the AT may hear submissions on, or themselves be concerned about, the likelihood of information being obtained. In these cases, the AT should use its discretion in deciding whether to set two dates to reconvene; one date for the substantive hearing and an earlier hearing date so that the tribunal can consider whether the information has been obtained and, if not, take appropriate action.


76. Where the PA or AA has complied, the GMC or the PA or AA may apply to the MPTS Case Management team to vacate the earlier date. Such applications must be made not less than 21 calendar days ahead of the earlier hearing date, to allow sufficient notice for tribunal members to be stood down.

Nature of the assessment or information sought

77. The question of what steps should be taken to obtain further information will be decided by the Regulator, having regard to the tribunal’s reasons for requesting the information, and in the interests of fairness, ensuring that the information is shared with the PA or AA (and any other relevant party). If the steps to be taken are likely to involve an assessment, the timeframes below will be relevant:

Performance assessments

78. The assessment can take from six months to 12 months and beyond.
    
    
79. In addition to the time required for the assessment, the AT should consider the time required for the GMC to consider the assessment report when it is received, and for it to be disclosed to, and considered by, the PA or AA in preparation for the reconvened hearing.

Health assessments

80. Health assessments take between three to four months to complete, and the time can vary based on the PA or AA’s availability to attend appointments with the GMC health examiners and submit to any testing.
    
    
81. The AT should also consider the time required for the GMC to consider the assessment reports, and for them to be disclosed to, and considered by, the PA or AA in preparation for the reconvened hearing.

English language assessments

82. PAs or AAs must be provided with a reasonable timeframe of at least 30 days in which to complete an assessment and provide their results to the GMC. The GMC will reimburse the PA or AA for one test conducted in that period. However, there is no limit on the number of tests that a PA or AA can take at their own expense during that time.
    
    
83. Within the timescales set, the PA or AA must provide the GMC with a copy of their test results from the assessment. The GMC will verify those results with the assessment provider. This verification process should take no more than one to two days.
    
    
84. Unlike performance and health assessments, significant additional time is not likely to be required by the parties to consider the results of an English language assessment.

Further information or reports

85. The timescales associated with obtaining any other further information or reports will vary depending on the circumstances of the case. The AT should seek to clarify the timescales required by inviting submissions from the parties.

Days to set down 

86. The AT should use its discretion when identifying how many days to set down for the reconvened hearing. If the AT is minded to reconvene at an earlier hearing date to consider compliance, it is advisable to set down one to two days for this to allow sufficient time, should it be necessary.
    
    
87. If the AT is reconvening to consider the outcome of the assessment and proceed with its consideration of the case, it will need to use its discretion in determining how many days are required. The AT may be assisted by submissions from the parties and must ensure that the reconvened dates are accepted by the MPTS Case Management team before they are finalised.

88. When the associates tribunal (AT) reconvenes, it will need to ascertain whether the GMC or PA or AA has obtained the further information or reports sought. 
    
    
89. If the further information or reports have been obtained, the AT should proceed to consider the case. This can include consideration of whether to adjourn for an assessment or whether another adjournment for further information or reports is necessary and proportionate. 
    
    
90. Where the further information or reports relate to the PA or AA’s health, the AT should be mindful of the need to ask appropriate questions to assist their consideration of the relevance and impact of the evidence obtained, and to aid in any assessment of whether a further adjournment may be appropriate, such as for a health assessment to be completed.
    
    
91. If the GMC or PA or AA has not obtained the further information or reports required, the AT may want to consider:
• whether a further adjournment is appropriate; or 
• in cases where a case management direction was made, whether to exercise its powers, including whether to draw an adverse inference in relation to the PA or AA’s failure to comply. To make this decision, the AT should refer to the guidance below on Failure to comply with Rules and/or case management directions.  

Where the AT adjourned for an assessment

92. When the AT reconvenes following a request for information which involved the Regulator giving a direction for the PA or AA to undergo an assessment or requiring the PA or AA to supply information, it will need to identify whether the PA or AA has complied with the direction to undergo an assessment or to supply information. 
    
    
93. If the PA or AA has complied, the AT may proceed to consider the substantive case. 
    
    
94. When deciding if a PA or AA has failed to comply, the AT should consider whether there is evidence that, as a matter of fact, the PA or AA did not comply with a direction to undergo an assessment or a requirement to supply information. 
    
    
95. To establish that there has been a failure to comply, the PA or AA must have been made aware of the direction by the Regulator to undergo an assessment and/or the requirement to supply information and the potential consequences of failing to comply. The AT should also have regard to any case management directions, which set out specific timescales, in relation to the further information which will have made clear to each party what they must do and assist the AT to determine the issue of compliance at the reconvened hearing.  
    
    
96. It would be unfair to conclude a PA or AA has failed to comply if they have not been given a reasonable opportunity to respond to a direction to undergo an assessment or a requirement to supply information and not informed of the possible consequences for failing to do so. 
    
    
97. A PA or AA may have failed to comply where they have: 

i. Explicitly refused to comply with a direction to undertake an assessment or to supply information 

This should be clearly documented and unambiguous.  

Evidence of an explicit refusal will usually be in writing in the form of a letter or email. The PA or AA may also have spoken to a member of GMC staff in which case a comprehensive telephone note of the conversation should have been made. 

The PA or AA will usually have been asked to provide reasons for their failure to comply, which, if available, will support consideration of whether they have failed to comply and if so, what the proportionate regulatory response is. 

ii. Agreed to comply but subsequently failed to, either in part or in full 

Partial compliance, or a subsequent failure to comply after an initial agreement to comply, could include: 

• Procrastination 
• Significant delays 
• Agreement to undergo an assessment or supply information but subsequently failing to do so, either fully or just with some components of the assessment or direction to provide information 

The PA or AA will usually have been asked to provide reasons for their failure to comply, which, if available, will support consideration of whether they have failed to comply and if so, what the proportionate regulatory response is. 

iii. Failed to respond to a direction to undertake an assessment or supply information

The AT should be satisfied that reasonable steps were taken to engage with the PA or AA and to remind them of the consequences of failing to comply. Reasonable steps are likely to include making attempts to communicate with the PA or AA through more than one method, such as by letter, email and/or telephone. 

 iv. Been prevented from participating in an assessment or supplying information because of the impact of a health condition.

This will apply where a PA or AA is unable to currently engage with the fitness to practise process and/or AT hearing due to the impact of an existing health condition. The PA or AA, or their representative, may have made representations to this effect (amounting to a form of self-certification). Alternatively, objective evidence may be available in the form of a report from the PA or AA’s treating healthcare practitioner, an update from their medical supervisor or a report prepared by a GMC health examiner that indicates the PA or AA has a health condition which is impacting their ability to comply.

98. There does not need to be a deliberate act or choice by the PA or AA for the AT to conclude there is evidence that they did not comply.
    
    
99. If the AT is not satisfied that there is evidence to show that, as a matter of fact, the PA or AA failed to comply with a direction to undergo an assessment and/or supply information, they do not need to go on to consider the next question. Instead, they should conclude that the PA or AA has not ‘failed to comply’ and they may continue with the substantive hearing, notwithstanding the lack of assessment or information. When continuing, the AT may want to consider whether a further adjournment is appropriate to enable the assessment to be carried out, or alternatively for further information or reports to be obtained. When making this decision tribunals should refer to the below content on Considering whether there is a realistic prospect of the PA or AA being willing and able to comply in a reasonable timeframe.
    
    
100. When considering whether to further adjourn the substantive hearing, the AT should also consider submissions received from the parties.
     
     
101. If the AT are satisfied that there is evidence to show that, as a matter of fact, the PA or AA did fail to comply with a direction to undergo an assessment and/or requirement to supply information, they can:
• further adjourn the substantive hearing if there is a realistic prospect of the PA or AA being willing and able to comply in a reasonable timeframe; or 
• draw an adverse inference, where it is appropriate to do so, and continue with the substantive hearing. 

Considering whether there is a realistic prospect of the PA or AA being willing and able to comply in a reasonable timeframe

102. To consider if there is a realistic prospect of the PA or AA being willing and able to comply in a reasonable timeframe, the AT needs to know the amount of time the PA or AA needs to fully comply and then assess the likelihood of their compliance within this timeframe.  
     
     
103. The AT should carefully consider the appropriate weight to attach to any evidence to inform their judgment of whether there is a realistic prospect that the PA or AA can comply in this time. As objective evidence is independent and verifiable, the AT is usually able to attach greater weight to it. 
     
     
104. What amounts to a reasonable timeframe will depend on the individual circumstances of the case, including, but not limited to: 
• the content of any available objective evidence. This will need to demonstrate why a specified amount of time is needed to comply, such as: objective medical evidence that sets out when the PA or AA can participate in an assessment, or, where the PA or AA is currently outside of the UK, documentation demonstrating a visa has been granted or will be granted imminently so they can arrange to travel. Where the PA or AA has said they have been prevented from complying due to the impact of a health condition, objective medical evidence could come from several sources, such as: a letter or report from the PA or AA’s treating practitioner or GP, an update from their medical supervisor or a report prepared by a GMC health examiner. In some cases, it may be appropriate for specialist health advice to be obtained to help inform the decision. This is likely to be where the objective medical evidence available is unclear and/or the PA or AA’s health condition is particularly complex. 
  
  
• the history of the concern. Delays in progressing the concern at the initial assessment stage or case examiners stage may impact the AT’s view on what is a reasonable amount of time for the PA or AA to comply, particularly where the delays relate to their willingness to engage in the fitness to practise process. Where the PA or AA has previously provided objective evidence of when they can comply, but the timeframe has since changed resulting in further delays, the AT should reduce the weight they attach to any further objective evidence demonstrating the PA or AA can comply in a reasonable timeframe. 
  
  
• the impact of delay on the complainant and/or any witnesses. The fitness to practise process can be stressful for all those involved, including witnesses, or others impacted, such as the complainant. Where further delay could have a detrimental impact on an individual or in the public’s trust in professional regulation, this should be considered.  

105. If the AT requires further information about the impact of a PA or AA’s health condition and the likelihood of them complying within a reasonable timeframe, it should be requested from medical professionals already familiar with the PA or AA’s health. However, in some cases it may be necessary for the AT to request an opinion from a GMC health examiner. 
     
     
106.  If the AT is satisfied that the PA or AA is likely to comply within a reasonable amount of time, they should consider further adjourning the substantive hearing. Where the AT is not satisfied that the PA or AA is likely to comply in a reasonable timeframe, they should continue with the substantive hearing, notwithstanding the lack of assessment or further information. 

Drawing adverse inferences

107. Where the AT is satisfied that the PA or AA has not complied with a requirement by the Regulator to undertake an assessment or provide further information, they have the power to draw an adverse inference. When considering whether to draw an adverse inference, please refer to the later part of this guidance Drawing adverse inferences.   

108. Interim measures will typically be considered by an interim measure tribunal (IMT). However, an associates tribunal (AT) may also impose or review an interim measure. 
     
     
109. A PA or AA may have interim restrictions in place at the point of the substantive hearing. Whilst these may relate to the same allegations that are before the AT to determine, they may also arise from concerns relating to other grounds of impairment that are still being investigated. 
     
     
110. Where the AT intends to adjourn to request further information or reports to be obtained and there is no existing interim measure in place, the tribunal should consider whether it is necessary to impose an interim measure, pending its further consideration of the matter. 
     
     
111. Where the AT intends to adjourn to request further information or reports to be obtained in a case where the PA or AA already has interim restrictions, they should consider whether the existing interim measure should be extended, varied, revoked or replaced with a different interim measure. 
     
     
112. When considering an interim measure, the AT should hear submissions from the parties on whether an interim measure is necessary or remains necessary. To decide the matter, the AT should apply the guidance in Section 2: IMT hearings.