Procedural matters relating to tribunal hearings

Representation at hearings

PA or AAs 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.²⁰ This may include the right to appoint appropriate representation at a hearing.

a solicitor or counsel²¹ (legal representative)
at the discretion of a case manager or the tribunal, an individual whom the case manager or tribunal allows to represent the PA or AA (including, but not limited to, a representative of a professional organisation of which the PA or AA is a member).²²

However, a person who is due to give evidence at the hearing²³ cannot represent the PA or AA at that hearing or accompany them in the hearing room prior to giving evidence.

Where the PA or AA is not represented during the hearing, then the tribunal will assist to ensure that the PA or AA 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 PA or AA at each stage and clarify the legal position in plain English. The tribunal may also direct the PA or AA to any relevant guidance.

Requirements for representation

present the PA or AA’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 need for cases to be dealt with fairly and justly.

A solicitor or counsel who wants to represent a PA or AA 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 PA or AA as a suitable individual (see paragraph 28 below).

The case manager or the tribunal, has a discretion to allow other individuals to represent the PA or AA (including, but not limited to, a representative of a professional organisation of which the PA or AA is a member).²⁴ Relevant professional organisations who may represent a PA or AA 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 PA or AA at a tribunal hearing.

Where a PA or AA wishes to be represented at a hearing by a person from a professional organisation or other person not listed in Annex B, an application must be made for that person to represent the PA or AA.

In all cases where the tribunal allows a person to represent a PA or AA 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 PA or AA 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 PA or AA 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.²⁵

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 PA or AA 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.

the importance of the hearing for the PA or AA
the complexity of the issues to be considered at the hearing
whether the person will be able to present the PA or AA’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.

²⁰ See Article 6 of the European Convention of Human Rights, incorporated in Schedule 1 of the Human Rights Act 1998.

²¹ Also known as an advocate and/or barrister.

²² Rule 39(1)(b).

²³ Rule 39(2).

²⁴ Rule 39(1)(a).

²⁵ Rule 39(1)(b).