Wed, 02 May 2012
By Susan Monogan
Most healthcare regulators’ fitness to practise rules (“FTP”) for a substantive disciplinary hearing divide the process of hearing the case into different stages. The first stage is to establish whether or not the facts are found proved and only after the panel have made such findings do they go on to consider impairment and sanction (second / third stages).
At stage one the panel considers whether the facts are proved to the required standard. The fitness to practise rules for most regulators specifies that the standard of proof is the civil standard, on the balance of probabilities. As can be seen below, a number of those regulators permit the professional who is facing charges to argue at the end of the case presenter’s case (the presenter for the regulator) that there is insufficient evidence to support the facts.
An argument has arisen recently in some quarters as to what test or guidance should be applied when considering such submissions, which are commonly known as “half time” or “no case to answer” submissions.
The dispute concerns whether the appropriate test is to consider what has been described as the “scintilla of evidence” test that was identified in the civil case of Benham Ltd-v- Kythira investments Ltd  EWCA Civ 1794, or the “no case to answer” test that was laid down in the well-known criminal authority of R-v- Galbraith  1WLR 1039.
In this article I will seek to argue that the appropriate test is not the “scintilla of evidence test” but the broader and more helpful guidance that can be derived from the principles identified in the case of Galbraith.
It is helpful in the first instance to have regard to the relevant rules of some of the healthcare regulators fitness to practise framework:
GENERAL MEDICAL COUNCIL
Rule 17(2)(g): the practitioner may make submissions regarding whether sufficient evidence has been adduced to find the facts proved or to support a finding of impairment, and the FTP Panel shall consider and announce its decision as to whether any such submissions should be upheld;
NURSING AND MIDWIFERY COUNCIL
Rule 24(7): Except where all the facts have been admitted and found proved under paragraph (5), at the close of the Council’s case, and—
(i) either upon the application of the registrant, or
(ii) of its own volition,
the Committee may hear submissions from the parties as to whether sufficient evidence has been presented to find the facts proved and shall make a determination as to whether the registrant has a case to answer.
GENERAL CHIROPRACTIC COUNCIL
Rule 6(7): At the conclusion of the stage referred to in paragraph (6)(a), the Committee may determine (whether on submissions of the respondent or otherwise) that insufficient evidence has been adduced to satisfy it that the allegation was well founded and dismiss the allegation without hearing evidence for the respondent.
GENERAL DENTAL COUNCIL
Rule 19(3): When the presenter has completed presenting evidence, the respondent or the respondent’s representative may open the case for the defence, which may include a submission that there is no case to answer.
Fitness to practise proceedings are civil in nature, although there are differences between civil proceedings and fitness to practise proceedings. This much has been identified by the recent Law Commission consultation on the regulation of healthcare professionals in the UK and social workers in England. This difference was also highlighted by Sir Anthony Clarke MR in Meadow v General Medical Council  EWCA Civ 1390,  1 QB 462 at :
“In fitness to practise proceedings the Fitness to Practise Panel is concerned to protect the public for the future and not to determine the rights and obligations of the parties in the same way as in a civil action. This introduces a further public interest which is not present in the ordinary civil suit.”
A significant feature of fitness to practise proceedings is that the regulator is the body presenting the case against the professional member. If the case is made out the professional may not be able to practise in their chosen profession or their right to practise could be severely constrained. Whilst the proceedings are adversarial in nature to the extent that the parties may be legally represented and each party may cross examine witnesses, there is also the inquisitorial function of the panel which is entitled to ask questions of witnesses. The panel’s role into making due enquiry and the panel’s powers to admit evidence that would not normally be admissible in civil or criminal proceedings is clearly seen in the following provisions of various fitness to practise rules:
THE GENERAL MEDICAL COUNCIL
(1) Subject to Paragraph (2) The Committee or a Panel may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a Court of Law.
(2) Where evidence would not be admissible in criminal proceedings in England the Committee or Panel shall not admit such evidence unless, on the advice of the Legal Assessor they are advised that their duty of making due enquiry into the case makes its admission desirable.
THE NURSING and MIDWIFERY COUNCIL
Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate Court in that part of the United Kingdom in which the hearing takes place).
THE GENERAL DENTAL COUNCIL
(1) A Practice Committee may in the course of the proceedings receive oral, documentary or other evidence that is admissible in civil proceedings in the appropriate Court in that part of the United Kingdom in which the hearing takes place.
(2) A Practice Committee may also, at their discretion, treat other evidence as admissible if, after consultation with the legal adviser, they consider that it would be helpful to the Practice Committee, and in the interests of justice, for that evidence to be heard.
THE GENERAL CHIROPRACTIC COUNCIL
(2) The Committee may receive oral, documentary or other evidence of any fact which appears to be relevant to the allegation before it, except that, where any matter tendered in evidence is such as will not be admissible in a court of criminal jurisdiction in the Country in the United Kingdom in which the allegation is heard, shall not be received unless the Committee are satisfied, after consulting the legal assessor, that it is desirable in the interest of making due enquiry that it should be so received, having regard to the justice of the case and the difficulty or expense of obtaining evidence which would be so admissible.
From a perusal of these various rules on the admission of evidence panels have a power to admit evidence if it is “fair”, “desirable for due enquiry” or is in the “interest of justice”.
Such broad powers by the panel are in keeping with the primary function of the fitness to practise panel which is to protect the public, maintain public confidence in the profession and uphold proper standards of conduct and behaviour. The fitness to practise proceedings engage Article 6 ECHR- a right to a fair hearing. In Bushell-v- Secretary of Station for the Environment  AC 75 Lord Diplock stated at [95D] “what is a fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter….”. Henchy J in the Irish Supreme Court in the case of Kiely –v- Minister for Social Welfare  IR 267 stated: “Tribunals exercising quasijudicial functions are frequently allowed to act informally to receive unsworn evidence, to act on hearsay, to depart from rules of evidence, to ignore court room procedure, and the like-but they must not act in such a way as to imperil a fair hearing or a fair result.” Henchy J went on to say this: “Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings.”
With these principles in mind it should be noted that in civil proceedings the general rule is that a judge should not entertain a half time submission unless the defendant elects to call no evidence. Only in exceptional circumstances should the judge deal with a submission without requiring the defendant to elect to call no evidence (see White Book para 32.1.6). In civil proceedings before the final hearing the defendant may make an application to strike out. This is in contrast to regulatory proceedings where no such mechanism exists and there is also no requirement for the professional to elect.
In Benham v Kytheria Investments Simon Brown LJ said the test is whether or not on the evidence adduced by the claimant, the claimant has a ‘real prospect of success” but conceded that what is meant by that test in this context (as distinct from summary judgment context (r24.2)) is not as clear as it might be. At paragraph 39 he went on to state that the “real prospect of success” may be reformulated as “have the claimants advanced a prima facie case to answer, a scintilla of evidence in support of the inference for which they contend, sufficient to call for an explanation from the defendant? That it may be a weak case and unlikely to succeed unless assisted, rather than contradicted, by the defendant’s evidence, or by adverse inferences to be drawn from the defendant’s not calling any evidence, would not allow it to be dismissed on a no case submission”. The procedure reflects the fact that a trial is an adversarial dispute resolution process, whereas regulatory proceedings are conceptually different for the reasons I have already set out and they are not simply an adversarial process. The test set down by Simon Brown LJ takes account of the nature of civil proceedings were there is the ability to strike out proceedings before the final hearing.
The “scintilla of evidence” test, if it were to be applied in regulatory proceedings is considerably more lenient to the claimant (the regulator) and it is in direct contrast to the view of Henchy J cited above when he was commenting on the role of tribunals “that natural justice is not observed if the scales of justice are tilted against one side….”.
If the “scintilla of evidence” test is to be applied in regulatory proceedings it fails to take account that such tribunals adjudicate on serious allegations of professional misconduct which may result in a person being struck off the role of his profession. There is no duty on the professional to attend his disciplinary hearing and no adverse inference can be drawn by his non-attendance.
In defamation cases, in the course of trial by judge and jury, issues of law for determination by the judge may arise and result in particular issues being withdrawn from the jury. The determination of those issues may turn on disputed questions of fact. The question of the test to be applied at half time was referred to in the Court of Appeal case ofAlexander v Arts Council for Wales  EWCA Civ514 where it was noted that “it is open to the judge in a libel case to come to the conclusion that the evidence, taken at its highest, is such that a jury properly directed could not properly reach a necessary factual conclusion. In those circumstances, it is the judge’s duty, upon a submission being made to him, to withdraw that issue from the jury. This is the test applied in criminal jury trials (see R v. Galbraith  1WLR 1039 at 1042C). In my view, it applies equally in libel actions.”
The test set out in Galbraith can be encapsulated as follows:
“(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty - the judge will stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case.
(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witnesses reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury” (per Lord Lane CJ at p 127).
The Lord Chief Justice then observed that borderline cases could be left to the discretion of the Judge.
In accordance with the Galbraith test the panel should assess the evidence, and if the evidence of the witness upon whom the case depends is self-contradictory and out of reason and all common sense, then such evidence is tenuous and suffers from inherent weakness. The <u style="color: rgb(106, 106, 106); line-height: 18.234375px; background-color: rgb(2