When in the proceedings should the AT consider and decide a VR application?

12. A VR application should not usually be considered until findings of fact have been made in relation to at least a significant proportion of the allegation. This is because until this stage of the proceedings is reached, the seriousness of the allegation will not be clear. 
    
    
13. Once a significant proportion of the allegation has been determined, there will be factual findings available to support a future assessment of any current and ongoing risk to public protection posed by the PA or AA if they apply for re-entry to the register. As the AT’s determination on facts will be published on the MPTS website, this will also achieve transparency.
    
    
14. However, where there are exceptional circumstances, the AT may decide it is more proportionate to decide the VR application before a decision on the facts has been made. To decide when it is appropriate to consider the VR application, the AT should balance any exceptional circumstances against any relevant public protection considerations.  

15. Exceptional circumstances are, by definition, unusual, and so will rarely arise. However, this threshold may be met where there is sufficient evidence presented to the AT that demonstrates the PA or AA is unable to participate in the hearing at all, whether in person or through providing instructions to a representative, due to the impact of a health condition or because of the impact the proceedings themselves will have on their health.
    
    
16. When considering if there are exceptional circumstances in respect of a PA or AA’s health, the AT should consider: 
• the impact of a health condition on the PA or AA’s ability to respond to the case, in any form, at a hearing 
• their likelihood of recovery, and 
• the likelihood and extent of any risk of harm to the PA or AA arising directly from the continuation of the hearing, including, if relevant, any risk to the PA or AA’s life⁶ that cannot be appropriately mitigated through the AT adjusting its procedures or making any reasonable adjustments. 

17. Evidence addressing the basis for the exceptional circumstances will usually be provided by, or on behalf of, a PA or AA seeking VR, although further information can be requested by the AT if required. However, as this may require an adjournment and delay the conclusion of the hearing, the AT should invite submissions from the parties on whether this is appropriate and proportionate, applying the guidance in the section on Adjournments in the Guidance for MPTS tribunals (PAs and AAs). 
    
    
18. It is not exceptional or even unusual for those involved in fitness to practise proceedings to find them stressful, including the PA or AA. The MPTS has put processes in place to try and minimise that stress insofar as possible. Evidence to support exceptional circumstances should therefore indicate how the ongoing proceedings will create an exceptional impact on the PA or AA. 
    
    
19. Where the AT has been provided with objective and up to date evidence that the PA or AA is unable to understand or participate in the hearing due to the impact of an ongoing health condition that is unlikely to resolve within a reasonable time frame for the hearing to proceed, or there is likely to be a significant risk of harm to the PA or AA arising directly from the continuation of the hearing, this will usually amount to exceptional circumstances that weigh in favour of considering the VR application at any stage of the proceedings as long as the hearing has commenced. 
    
    
20. However, before deciding to consider the application, the AT must weigh and balance the exceptional circumstances presented to them against any relevant public protection considerations. 

21. The relevant public protection considerations include, but are not limited to: 
• the extent to which relevant evidence may be lost if disputed facts are not decided, including the likelihood of being able to secure the attendance of any key witnesses at a future hearing 
• the seriousness of the allegation that remains in dispute, and 
• the extent to which the allegations have been reviewed by other public adjudicatory bodies and the outcome. 

The extent to which relevant evidence may be lost if disputed facts are not decided 

22. If a PA or AA disputes a significant proportion⁷ of the allegations and findings of fact are not made before they leave the register, there is a risk that the GMC will not be able to revive the unresolved concern if the PA or AA applies for re-entry to the register in the future. This is because evidence may be lost, deteriorate or a witness’s memory may fade, or they may become uncontactable or have died. An issue with revival may also arise due to documentary evidence being destroyed, deliberately or otherwise.  
    
    
23. However, this risk is reduced or eliminated where the allegation is about a PA or AA’s performance, the impact of a health condition or knowledge of English language, because objective evidence of their fitness to practise can usually be obtained at the point a re-entry application is made by them undertaking a relevant assessment. 
    
    
24. In cases where the AT has received a certificate of conviction or determination, as this amounts to conclusive evidence of the offence committed or of the findings made by another regulator about the PA or AA’s fitness to practise, it also reduces or eliminates this risk. 
    
    
25. If the PA or AA disputes a significant proportion of the allegation and there is a risk that relevant evidence may be lost that cannot be appropriately mitigated, this may weigh towards allowing the hearing to progress up to at least the point that findings of fact are made before it is appropriate for the AT to consider the VR application.  

The seriousness of the allegation that remains in dispute 

26. The AT will first need to reach a view on the seriousness of the allegation by applying the guidance in the section Step 2b: Decide where on the spectrum of seriousness the allegation lies in the Guidance for MPTS tribunal (PAs and AAs) which takes into account the nature of the allegation.  
    
    
27. Public confidence in the medical professions is less likely to be damaged if a PA or AA leaves the register where the allegation falls at the lower end of the spectrum of seriousness on the basis the nature of the allegation means it is more likely to be easily remediable. This often includes where the allegation relates solely to a PA or AA’s performance, the impact of a health condition or knowledge of English language. 
    
    
28. Where the allegation falls at the higher end of the spectrum of seriousness and/or resulted in significant public concern, the impact on public confidence will usually weigh towards allowing the hearing to progress up to at least the point that findings of fact are made before it is appropriate to consider the VR application.

The extent to which the allegations have been reviewed by other public adjudicatory bodies and the outcome 

29. Where there has been consideration of the circumstances giving rise to the allegation by another public or adjudicatory body and the outcome is in the public domain, an argument that considering the VR application before findings of fact have been made would harm public confidence or undermine professional standards may be less compelling. This includes consideration of the matter by another healthcare regulator.  
    
    
30. However, where regulatory proceedings have been recommended by another body, there may be a reasonable public expectation that the fitness to practise process will be followed through to a specific stage to maintain public confidence. Where this is the case, this will usually weigh towards allowing the hearing to progress up to at least the point that findings of fact are made before considering the VR application.