News

Recent cases and Commentary

Admissibility of findings in professional disciplinary proceedings

INTRODUCTION

When a professional client is brought before their regulator, it is not uncommon for it to be the last in a number of hearings considering the same allegations, such as those held by their employer, concurrent criminal proceedings, or a coroner's inquest. This article considers the situations in which the judgments and findings of such hearings may be admissible before a professional disciplinary tribunal where they are not automatically admissible, such as is often the case with criminal convictions.

 

WHEN A JUDGMENT MAY BE ADMISSIBLE

A general principle exists that judgments in other proceedings are not admissible evidence: Hollington v F. Hewthorn & Co. [1943] KB 587.

R (Squier) v GMC [2015] EWHC 299 (Admin), however, is authority for the proposition that related judgments may be admissible in professional disciplinary proceedings where the judgment is adduced to evidence of background facts and to give context. At para. [39-40], per by Ouseley J, the authorities on this point were reviewed and it was held that (emphasis added):

In the light of those authorities, the FTPP did not act unreasonably in concluding that the judgments would be relevant in providing an insight into the background to the cases and the forensic context in which Dr Squire prepared to the cases and the forensic context in which Dr Squier prepared and gave her evidence, and in providing prima facie evidence of facts about the circumstances of the deaths, the post-mortems, what the parents said, and the medical issues faced at trials to which the Dr. Squier’s evidence was relevant

The FTPP did not decide that the judgments were to be admitted to prove the cause of death; that is not an issue for the FTPP. They are not relevant to prove that Dr Squier's evidence was not accepted or was found to be lacking in certain qualities. The issue before the FTPP is not whether Dr Squier was right or wrong which was the issue before the judges, but concerns the basis upon which she gave her evidence, its scope and her use of the underlying research papers. That is the crucial issue for the FTPP. The actual outcome of the trials, and any finding in or inferred from the redacted judgments that Dr Squier's evidence was rejected, is not relevant to these allegations of misconduct...

The following passage warns against the dangers of the admission of evidence on the crucial issues where the charges have been otherwise adversely determined against a registrant at an earlier stage (para. [43]):

It may also be unfair for the judgments to be a significant influence on the mind of the tribunal on the crucial issues before it for the same reasons.”

At para. [45] it was held that:

"It is not unfair for the judgments to be admitted... The FTPP must find for itself the facts necessary to reach a conclusion on the quality of the expert evidence given by Dr Squier in the light of the allegations as to its shortcomings, and the evidence before the FTPP. The FTPP should be very careful to avoid any actual or inferred findings of the judges on the quality of Dr Squier's evidence being used as evidence of the truth of the allegations, because that risks substituting another body for its functions. And its task is not that of the judges in those cases; the issues crucially are different, as are the parties and the evidence which it will have to consider."

At para. [48] it was held that:

The judgments, as redacted, do not include findings on the allegations which it is for the FTPP to decide. They provide background, context and proof of what I would expect to be often non-contentious matters. The FTPP has to find the allegation proved by the GMC on the evidence that the scope and content of Dr Squier's expert evidence was below the standard required of an expert; the allegations are not that the evidence was wrong, or rejected by the judges.

This case followed GMC v Meadow [2006] EWCA Civ 1390 in which it was held that it may be important for an FTP Panel when considering alleged misconduct of an expert witness to be aware of the context in which evidence was given in previous proceedings.

 

LIMITATIONS OF SQUIER

In Enemuwe v NMC [2015] EWHC 2081 it was held by Holman J that the NMC should not have been allowed to rely on adverse findings in a report of a Supervisor of Midwives on the same issues that were said to amount to professional misconduct. Notwithstanding that Squier allowed earlier judgments to be admissible as 'prima-facie evidence' (para. [39], above) Enemuwe distinguished Squier at para [74] to [76]

It seems to me that the circumstances and forensic context with which Ouseley J was concerned, and in which prospectively the FTPP of the General Medical Council will look, or may look, at redacted versions of the judgments, is analytically different from what is in point and issue in the present case

In that case, the essential task of the judges had been to decide what the facts were in relation to the deaths of the children. That was completely different from the essential task prospectively of the FTPP, which is to consider allegations with regard to the professionalism of Dr Squier as a person giving expert evidence. 

In the present case, however, the supervisory investigation report of Ms 2 and the role and task of the Committee at the fact-finding stage of their hearing was in fact identical, namely to decide whether or not the Appellant had said or done the various things alleged against her.

Accordingly, the situations in which earlier judgments can be adduced under the principle in Squier should be narrowly defined, and it is important to look at the reasons behind why a regulator might wish to adduce an earlier judgment against a registrant.

 

HIGH COURT TRIALS AND FINDINGS OF DISHONESTY

A question arises as to the extent to which a related judgment can be relied on as prima-facie evidence of matters of fact in issue. To that end, the Court in Squier considered an older case of Spackman v GMC [1943] AC 627 in which the GMC relied on a Divorce Court finding of adultery as prima facie evidence of the adultery itself. It should be noted that technically Spackman is obiter on this point; the point to be decided in that case was whether the tribunal erred in not allowing rebuttal evidence to be adduced on behalf of the doctor.

It is of note that Lord Atkin in Spackman held that (at p634):

It is not disputed that where there has been a trial, at least before a High Court judge, the notes of the evidence at such a trial and the judgment of the judge may afford prima facie evidence in support of the charge, for the council are not obliged to hear evidence on oath, but the very conception of prima facie evidence involves the opportunity of controverting it …. '.

It can be argued, therefore, that the effect Spackman should be limited to trials which have been heard at High Court level and above. The context in which this is most likely to be relevant is where a civil court makes a finding of dishonesty against a legal professional in the course of proceedings.

To that end, in Constantinides v The Law Society [2006] EWHC 725 (Admin) it was held by Moses LJ that at para. [28]:

“The judgment was admissible to prove background facts in the context of which the appellant’s misconduct had to be considered. But that was the limit of its function, in the particular circumstances of this case. The judge’s views as to the appellant’s dishonesty and lack of integrity were not admissible to prove the Law Society’s case against this appellant. There will be cases when a finding of fact, be it in a civil or criminal case, of dishonesty will be prima facie evidence of that dishonesty. But in the instant case the judge’s conclusions were far more wide ranging than the allegations made against the appellant in the disciplinary proceedings. They were not relied upon by the Law Society as proof of dishonesty. At paragraph 21 it was recorded that the Law Society only intended to rely upon the judge’s description of the appellant’s behavior and to limit the references to the allegations made in the disciplinary proceedings.’

In Georgieva v NMC [2017] GWD 11-156 it was held that a decision of a Registrar’s Appeal Hearing could be placed into evidence before an Investigating Committee, but at para. [20] it is clear that it was only admissible, and to a limited extent, because (per Sheriff Welsh QC):

In my opinion it was relevant to the general background of the caseHad the Investigating Committee used the Registrar’s Appeal Hearing decision as a material building block in the construction of its own decision that too would have been unlawful’.

Georgieva v NMC [2017] GWD 11-156 approved Constantinides to the extent that the judgment was admissible ‘to prove background facts (at para. [24] per Sheriff T Welsh QC). It follows that admissibility as 'prima-facie evidence' as set out in Squier and Constantinides should be only considered appropriate in limited circumstances. 

 

INQUEST FINDINGS 

Particular care should be given if a regulator seeks to adduce the findings of an inquest against a registrant.

Inquest findings may be admissible at the review level of a regulator prior to submission to a disciplinary tribunal for final determination according to guidance approved in Woods v GMC [2002] EWHC 1484:

1. In conduct cases the PPC’s task is to decide whether, in its opinion, there is a real prospect of serious professional misconduct being established before the PCC…..

…in performing its task the PPC:

(5) should proceed with particular caution in reaching a decision to halt a complaint when the decision may be perceived as inconsistent with a decision made by another public body with medical personnel or input (for example, an NHS body, a Coroner or an Ombudsman) in relation to the same or substantially the same facts and, if it does reach such a decision, should give reasons for any apparent inconsistency;”

However, this does not mean that they will be admissible in determining final charges against a registrant, as this would fall foul of the observations of the High Court in the cases set out earlier in this article.

The admissibility of an inquest verdict was considered in the context of a claim for breach articles 2 and 3 European Convention on Human Rights in Daniel v St. George's Healthcare NHS Trust [2016] EWHC 23 (QB). At para. [40] it was observed by Lang J that:

"...evidence called at the Inquest differed from the evidence adduced in this trial, which could potentially make a material difference to the conclusions which this court could properly reach. Moreover, an inquest verdict is not intended to form the basis of a finding in a civil claim - section 10(2) of the Coroners and Justice Act 2009 provides that a determination at an inquest may not be framed in such a way as to appear to determine any question of civil liability."

This, again, tends to suggest that an inquest finding should not be admissible against a registrant in professional disciplinary proceedings.

 

CONCLUSION

The above cases suggest that where a regulator seeks to adduce a judgment or other finding against a registrant in professional disciplinary proceedings it is essential to ask why the judgment is being adduced. It may be admissible as evidence of general background and context, such as where the conduct of a legal professional or expert witness is called in to question. It should not, however, be adduced as evidence to support a finding of fact against a registrant where the earlier finding is on the same issues as the allegation the registrant faces.