Dr Richard Alexander Scott, ex Christian missionary, and a General Medical Practitioner allegedly asked one of his patients if he had considered faith in Jesus during his consultation in National Health Service surgery. Patient was allegedly distressed by this and his mother wrote a complaint to General Medical Council, the regulator of medical profession.Setting a disciplinary Fitness to Practice hearing was a bit problematic for GMC but eventually, GMC offered telephone evidence by patient and in private hearing by GMC Investigation Committee.
Dr Scott's barrister, Mr Diamond objected on the grounds that body language of the witness needs to be seen by FTP panel members and others present. We are not aware that Mr Diamond, GMC or High Court are keen on televised record in that case and not just transcripts. Surely, fairness principles should apply to appeals as well and to all doctors.
Considering vulnerability of patient it may feel right to GMC to offer evidence by telephone, but giving evidence via video link is another possibility.
Of course, journalists can be present in family courts which are rather private and non-disclosure of identity to public can be assured. Assuring a degree of privacy does not mean that there should be no public scrutiny at all.
In ASIC v Rich [2004] 467 judge evaluated arguments for the way evidence can be given and concluded that it depended on circumstances of the particular case:
http://www.lawlink.nsw.gov.au/scjudgments/2009nswsc.nsf/2009nswsc.nsf/WebView2/946C84C9B612746FCA25766C002688F0?OpenDocument
Good luck if you can find where it is. The case is probably the biggest in Australian history and there were many interlocutory judgments and in different countries, some not cited.
Investigation Committee – Determination
on Defence application to adjourn proceedings - 12 June 2012
Dr
Richard Alexander SCOTT
(2890748)
Mr Hurst:
The Committee
has considered your application, on behalf of the General Medical Council (GMC),
to hear a witness, Patient A, via telephone and in private. You provided the
Committee with a witness statement from Patient A in which he stated that he
was unable to attend the hearing as a result of both his physical and mental
health. Patient A believed that his health would be negatively affected if he
were to give evidence by any other means than by telephone and in private.
Patient A stated further that he did not wish his identity to be revealed to
the public and if he were to be identified this may negatively affect his job.
In addition
to the witness statement of Patient A the Committee was provided with an email
from Patient A’s GP, dated 11 June 2012, in which it was confirmed that
attending the hearing in person, or by way of video link, would have a very
serious adverse effect upon Patient A’s mental and physical health.
In response
to the points raised within the Defence’s skeleton argument, you referred the
Committee to the case of R (Thompson) v Law Society [2004] which you
submitted demonstrated that a decision by a regulator to reprimand a
professional person, does not amount to a determination of that person’s civil
rights. As the Investigation Committee does not have the power to make
determinations adverse to a Doctor’s fitness to practice, the Investigation
Committee is not empowered to determine “civil rights and obligations” so as to
engage Article 6 of the Human Rights Act.
You
submitted, therefore, that the consideration for the Investigation Committee
was one of proportionality. You brought the Committee’s attention to the case
of R (Bonhoeffer) v General Medical Council (2010) which you submitted
demonstrated that even in cases that have the possibility of impacting on civil
rights, the need for the attendance of the complainant is not absolute. You
submitted that the principle of a fair hearing is not limited to fairness to
the doctor, and that as Patient A was the only other person who was present at
the consultation in question, his evidence is highly relevant and should be
admitted accordingly.
You
additionally submitted that even if Patient A was unable to attend, even by
telephone, his written evidence could properly be admitted as hearsay evidence in accordance with Rule 11(7)(a) and determined
in the round by the Committee; assessing the appropriate weight to be accorded
to it.
Following
questions from the Committee you confirmed that you do not seek to rely upon
Rule 36 of the General Medical Council (Fitness to Practise) Rules 2004 as you
do not believe Patient A’s circumstances allow for him to be classified as a
vulnerable witness. However, you submitted that Rule 36 was of use to the
Committee as it demonstrated that it is appropriate to take into account the
circumstances of witnesses.
Mr Diamond, counsel
on behalf of Dr Scott opposed your application and indicated that evidence via
telephone is less than optimal in comparison to having witnesses give live
evidence, or at least see the witness on a video link. He submitted that he would not be able to see
the witness or regard his demeanour if he was to give evidence via telephone.
Mr Diamond
submitted further that to accept evidence by way of telephone would be in breach
of Dr Scott’s rights under Article 6 and the Common Law. The basic position
under both Article 6 and the Common law is that the Defendant in a criminal
trial should be confronted by his accusers in order that he may cross examine
them and challenge their evidence. Evidence by telephone does not constitute
confrontation and fails to accord the right to a fair trial to Dr Scott. The
Committee were referred to the cases of R v Davies [2008], Luca v
Italy(2003) and PS v Germany
(2001).
Mr Diamond
submitted further that the defence did not accept the evidence put forward by
Patient A’s GP and would have questions to ask this witness. It was submitted
that the defence believed Patient A to be well enough to attend.
The Committee
has accepted the advice of the Legal Assessor including his advice that the
previous Committee made no final decision on the question whether Patient A
should be required to attend, but only required the GMC to make further
attempts to secure Patient A’s attendance.
The
Committee has been satisfied that the GMC has made adequate attempts, since the
previous hearing, to secure Patient A’s attendance and has received no evidence
to suggest that this is not the case.
In reaching
its decision, the Committee has considered all the circumstances. These
included:
- the willingness and ability of the witness to attend in person,
- the impact upon the witness if he were to attend,
- the importance of the witness’s evidence to the proceedings, and
- fairness to all parties.
The
Committee in determining this matter have accepted the content of the email
from Patient A’s GP which confirms that attendance at this hearing would have a
very serious adverse effect upon Patient A’s mental and physical health. The
Committee has no reason to doubt the information provided by Patient A’s
registered GP and furthermore does not consider it necessary for the GP to be
present at this hearing. The Committee considers the medical evidence to be
clear.
The
Committee considers that this matter ought to be heard and dealt with now in
fairness both to the doctor and Patient A and in the public interest. The only
way in which this can be achieved is by hearing and weighing Patient A’s
evidence by telephone or by excluding it. The Committee considers that it would
be better for it to hear the evidence than not to. Mr Diamond will be able to
cross examine Patient A. The evidence adduced as to the patient’s health and
circumstances has satisfied the Committee that it would be inappropriate for
Patient A to be required to attend this hearing.
Having taken
all factors into account the Committee has determined to accede to your application
and hear the evidence of this witness via telephone.
When
considering whether the evidence should be heard in private the Committee notes
that the disputed facts relate to a medical consultation between Patient A and
the doctor which, in itself, attracts a certain level of confidentiality.
Furthermore, the Patient’s religious beliefs and current health are likely to
be discussed in significant detail which all attracts a level of
confidentiality. The Committee considers that it would not be possible to
separate out the public and private aspects of Patient A’s evidence and accordingly
has decided that his oral evidence shall be heard in private.
On a final
point the Committee also wishes to stress the importance of maintaining Patient
A’s anonymity and requests that both Counsel continue to exercise great caution
when speaking in public session.
The Committee
will, of course, when weighing up Patient A’s evidence, bear in mind that he
gave his evidence via telephone and will, in due course, receive any relevant
submissions from the parties.
Finally, the
Committee is mindful that certain safeguards should be put in place to ensure
the quality of Patient A’s evidence is protected. As such, the Committee has
determined that Patient A must be accompanied by an employee of the General
Medical Council, or an independent solicitor or legal executive, whilst giving
evidence. This individual will be relied upon to:
- verify Patient A’s identity;
- administer the oath or affirmation;
- provide Patient A with copies of documents referred to during his evidence;
- ensure Patient A is not prompted or coached during his evidence,
- ensure Patient A does not breach his oath during any breaks to be taken.
The
Committee is mindful that it is not in a position to dictate how long the GMC
will require to put in place such safeguards and therefore invite you to
address the Committee on this matter once initial enquiries have been made.
No comments:
Post a Comment