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Procedural matters relating to tribunal hearings

Witnesses

  1. Any witness giving oral evidence at a hearing will be required to swear an oath or make a general affirmation which makes it clear that their duty is to the tribunal, and not to the party that is calling them, and they should answer all questions carefully and truthfully.36  

  2. This is most relevant to AT hearings, where witness evidence is often relied on by the parties. It is rare that witness evidence will be relied on at an IMT hearing as the Rules provide that no person will give oral evidence at an IMT hearing unless the IMT consider such evidence is necessary to discharge its functions.37 

  3. The tribunal should make sure that witnesses are suitably supported to give their evidence. This includes ensuring that questions put to the witness by the tribunal themselves and/or the parties are clear and in plain English, that they are addressed using the correct naming convention being used during the hearing, and with their preferred pronoun. It also means ensuring that witnesses are treated with dignity and respect. The tribunal should be prepared to intervene if the approach to cross-examination of a witness is not appropriate or is causing unnecessary distress. 

  4. The tribunal should take care to understand the individual needs of the witness. This includes ensuring any arrangements agreed during pre-hearing case management are met as well as responding to any needs that arise during the hearing. Providing witness evidence can be challenging and distressing and while support will typically be provided to the witness by the party calling them, the tribunal should consider how to support the witness to give their best evidence.  

  5. Witnesses are not able to attend the hearing in any capacity prior to them giving evidence, except with the prior permission of the tribunal. Once a witness has concluded their evidence, they can observe the hearing when the hearing is in public session. 

  6. A witness cannot act as a representative for a PA or AA. 

Applications relating to witnesses

Oral evidence in chief

  1. In all hearing types, witness statements stand as evidence in chief unless the parties have agreed, an MPTS case manager has directed, or the tribunal decides, that a witness is to give oral evidence in chief.38 

  2. This is most relevant to AT hearings, where witness evidence is often relied on by the parties. It is rare that witness evidence will be relied on at an IMT hearing as the Rules provide that no person will give oral evidence at an IMT hearing unless the IMT consider such evidence is necessary to discharge its functions. 

  3. If a witness’ signed witness statement is received as evidence in chief, the witness may still be required for oral cross-examination by the other party, re-examination by the party calling them and to answer any questions the tribunal may have. 

  4. In AT hearings, oral evidence in chief applications should be identified during pre-hearing case management with applications being made in advance and determined by an MPTS case manager. To decide the application the MPTS case manager will apply the Guidance for decision makers, parties and representatives on receiving witness evidence at AT hearings. 

  5. Tribunals will be supplied with a copy of the pre-hearing decision, which will form the basis of the arrangements the parties have made for that witness’ evidence and must have read this. Directions made by an MPTS case manager are legally binding and tribunals must proceed in accordance with them unless there is a material change in circumstances or it is otherwise in the interests of justice to proceed differently.  

  6. Where an MPTS case manager has already granted an application for oral evidence in chief to be given, it is not necessary for the tribunal to consider the same application again. 

  7. By exception, tribunals may need to consider oral evidence in chief applications if a party has failed to make a pre-hearing application or if their position unexpectedly changes shortly prior to the hearing. When considering whether to make a different decision, the tribunal must bear in mind that the parties will have prepared their case based on directions given by the MPTS case manager. The tribunal must ensure they have read any decisions made by the MPTS case manager and directions given. Any subsequent change must be clearly justified as it is likely to result in delay, distress for the witness and possibly unfairness to at least one, if not both, parties. 

  8. Where a tribunal is considering an oral evidence in chief application, both parties must be given the opportunity to make representations. The tribunal must decide whether it is in the interests of justice to allow oral evidence in chief to be given. To do so they should consider whether oral evidence in chief is necessary and/or desirable to ensure the fair and just disposal of the case. 

  9. The tribunal should also consider the impact oral evidence in chief will have on the hearing timetable. Where permitting oral evidence in chief would risk the hearing being unable to complete within the time allocated and there are no compelling reasons why oral evidence in chief is necessary to ensure fairness, it is unlikely to be appropriate to give permission. 

Remote evidence

  1. The ability to give evidence remotely is most relevant to AT hearings, where witness evidence is often relied on by the parties. It is rare that witness evidence will be relied on at an IMT hearing as the Rules provide that no person will give oral evidence at an IMT hearing unless the IMT consider such evidence is necessary to discharge its functions. 

  2. In AT hearings, the need for any witness to give evidence remotely, such as by telephone or video link, should be identified during pre-hearing case management with applications being made in advance and determined by an MPTS case manager. To decide the application the MPTS case manager will apply the Guidance for decision makers, parties and representatives on receiving witness evidence at AT hearings. 

  3. Tribunals will be supplied with a copy of the pre-hearing decision, which will form the basis of the arrangements the parties have made for that witness’ evidence and must have read this. Directions made by an MPTS case manager are legally binding and tribunals must proceed in accordance with them unless there is a material change in circumstances or it is otherwise in the interests of justice to proceed differently.  

  4. Where an MPTS case manager has already granted an application for evidence to be given by remote means, it is not necessary for the tribunal to consider the same application again. 

  5. By exception, tribunals may need to consider remote evidence applications if a party has failed to make a pre-hearing application or if their position unexpectedly changes shortly prior to the hearing. When considering whether to make a different decision, the tribunal must bear in mind that the parties will have prepared their case based on directions given by the MPTS case manager. The tribunal must ensure they have read any decisions made by the MPTS case manager and directions given. Any subsequent change must be clearly justified as it is likely to result in delay, distress for the witness and possibly unfairness to at least one, if not both, parties. 

  6. Where a tribunal is considering a remote evidence application, both parties must be given the opportunity to make representations. The tribunal must decide whether it is in the interests of justice to allow use of video link or telephone evidence. In doing so, they should consider whether video link or telephone evidence will be more likely to be beneficial to the fair and just disposal of the case.  

  7. There may be a strong argument in favour of receiving video link or telephone evidence from: 
    • Professional witnesses, including expert witnesses, by video link or telephone if requiring the witness to attend in person would result in the cancellation of a clinic, theatre list or similar professional commitment, or 
    • Witnesses based overseas where the cost of that witness’ travel to the hearing is disproportionately expensive and/or likely to result in a delay to the proceedings. 
  1. When considering the use of remote evidence, the tribunal should also consider if there are any practical issues that mean the application should be refused. This might be necessary where the witness does not have access to an appropriate device and/or internet connection that will ensure a video link will work or where allowing remote participation would cause unnecessary delays during the hearing. 

Vulnerable witnesses

  1. Either party may apply for a witness to be treated as a vulnerable witness and for special measures to be used to ensure the tribunal can receive their best evidence. Any witness, where the allegation against the practitioner is of a sexual nature or relates to domestic abuse, and the witness was the alleged victim, must be treated as vulnerable.39 

  2. Where the application asserts that a witness is a vulnerable for some other reason, the MPTS case manager or AT will need to decide whether and on what basis the witness is vulnerable and how their evidence will be affected by that vulnerability, taking into account the interests of the witness and the circumstances of the case and/or matters to be determined.40 The following individuals may be treated as vulnerable: 
    • any witness under the age of 18 at the time of the hearing 
    • any witness with a mental disorder within the meaning of the Mental Health Act 1983 
    • any witness who is significantly impaired in relation to intelligence and social functioning 
    • any witness with physical disabilities who requires assistance to give evidence 
    • any witness who complains of intimidation, and 
    • any witness who is vulnerable for some other reason, taking into account the interests of the witness and all the circumstances of a case or matter to be determined. 
  1. This is most relevant to AT hearings, where witness evidence is often relied on by the parties. It is rare that witness evidence will be relied on at an IMT hearing as the Rules provide that no person will give oral evidence at an IMT hearing unless the IMT consider such evidence is necessary to discharge its functions.41 

  2. In AT hearings, vulnerable witness applications should be identified during pre-hearing case management with applications being made in advance and determined by the MPTS case manager. To decide the application the MPTS case manager will apply the Guidance for decision makers, parties and representatives on receiving witness evidence at AT hearings. 

  3. Tribunals will be supplied with a copy of the pre-hearing decision, which will form the basis of the arrangements the parties have made for that witness’ evidence and must have read this. Directions made by an MPTS case manager are legally binding and tribunals must proceed in accordance with them unless there is a material change in circumstances or it is otherwise in the interests of justice to proceed differently.  

  4. Where an MPTS case manager has already granted a vulnerable witness application, it is not necessary for the tribunal to consider the same application again. 

  5. By exception, tribunals may need to consider vulnerable witness applications if a witness’ potential vulnerability was not known to parties ahead of the hearing, or if the special measure required for best evidence unexpectedly changes during the hearing. When considering whether to make a different decision, the tribunal must bear in mind that the parties will have prepared their case based on directions given by the MPTS case manager. The tribunal must ensure they have read any decisions made by the MPTS case manager and directions given. Any subsequent change must be clearly justified as it is likely to result in delay, distress for the vulnerable witness and possibly unfairness to at least one, if not both, parties. 

  6. Where a tribunal is considering a vulnerable witness application, both parties must be given the opportunity to make representations. The tribunal must first decide whether the individual should be treated as a vulnerable witness and, if so, go on to decide on the measures they consider desirable to enable them to receive evidence from that witness. When making this decision, tribunals should apply the Guidance for decision makers, parties and representatives on receiving witness evidence at an AT hearing. 

  7. Measures adopted by the tribunal may include, but are not limited to: 
    • use of video links 
    • use of pre-recorded evidence as the evidence-in-chief of a witness, provided the witness is available at the hearing for cross-examination and questioning 
    • use of interpreters, including signers and translators, or intermediaries 
    • use of screens or such other measures the tribunal considers necessary in the circumstances to prevent the identity of the witness being revealed to the press or the general public, or to prevent access to the witness by the doctor, and 
    • the hearing of evidence in private.42 
  1. Other measures relevant to virtual hearings, such as the PA/ AA switching their camera off while a vulnerable witness gives evidence, may also be adopted if the tribunal consider the measure is appropriate to support the tribunal receive the witness’s best evidence. 

  2. Where a witness is not treated as vulnerable, there may still be circumstances in which additional support or measures could help them participate effectively in the hearing. Where this is relevant, adjustments can be considered. 

Cross-examination of witnesses by the PA or AA

  1. Where the allegation against the PA or AA is sexual in nature and the PA or AA is not represented, the PA or AA will not be permitted to cross-examine the witness without the written consent of the witness.  

  2. In these circumstances the PA or AA will be required to appoint a legally qualified individual to cross-examine the witness on their behalf, or the MPTS will appoint such an individual on the PA or AA’s behalf if they fail to do so.  

  3. Where special counsel is appointed by the MPTS but the PA or AA does not attend and the tribunal determines to proceed in the PA or AA’s absence, the tribunal must release special counsel as they are not entitled to cross-examine the witness without instructions.  

Expert witnesses

  1. Expert witnesses are expected to give independent opinions. Their duty to assist the tribunal overrides any obligations they have to the party instructing or paying them.  

  2. When giving evidence at a tribunal hearing an expert should provide independent assistance by way of objective, unbiased opinion in relation to matters within their expertise. This involves, but is not limited to: 
    • confining their opinion to relevant issues and taking into account all relevant information 
    • stating any facts or assumptions on which their opinion is based  
    • if their opinion would differ depending on which factual account is accepted, giving alternative opinions for each different factual account, and 
    • making it clear if a particular question or issue falls outside their expertise. 
  1. Where appropriate, the tribunal may choose to remind an expert witness about their professional obligations. For PA or AAs, the ten principles of good practice when acting as a witness in legal proceedings and specific responsibilities for expert witnesses are set out in the more detailed guidance on Providing witness statements or expert evidence as part of legal proceedings.  

Adjustments for witnesses

  1. If a witness requires any adjustments, the tribunal should refer to the guidance on Adjustments for all hearing participants. 

37 Rule 44(3).

38 Rule 44(10).

39 Rule 43(3).

40 Rule 43(4).

41 Rule 44(3).