1. Supporting medical students in fitness to practise hearings Toni Smerdon Principal Legal Adviser General Medical Council May 2014

2. What do we mean?  Support – someone who advises and/or accompanies a student  Representation – someone who speaks on behalf of the student but also provides support NB paragraph 140 of Medical Students: professional values and fitness to practise

3. Support Examples  Student support services  Friend or family member  Academic adviser  Student Union advice service  British Medical Association / medical defence organisation

4. Representation Examples  Another student / student services  Friend or family member  Medical defence organisation / other membership organisation  Solicitor / barrister / legal executive

5. Representation (GMC) – rule 33 Rule 33 - GMC (Fitness to Practise) Rules 2004 provides: (1) At the hearing, the practitioner may be represented by: - (a) a solicitor or counsel; (b) a representative from any professional organisation of which he is a member; or (c) at the discretion of the Committee or Panel, a member of his family or other person.

6. Rule 33 (continued) (2) A person who gives evidence at a hearing shall not be entitled to represent or accompany the practitioner at that hearing. (3) The practitioner (either in person or by a representative under paragraph (1)) and the Presenting Officer shall be entitled to be heard by the Committee or Panel. NB guidance on ‘fit and proper persons’ under rule 33(1)(c)

7. Exception – rules 36(4) and (5) (4) Where - (a) the allegation against a practitioner is based on facts which are sexual in nature; (b) a witness is an alleged victim; and (c) the practitioner is acting in person, the practitioner shall not without the written consent of the witness be allowed to cross- examine the witness in person.

8. Exception (continued) (5) In the circumstances set out in paragraph (4), in the absence of written consent, the practitioner shall no less than 7 days before the hearing appoint a legally qualified person to cross examine the witness on his behalf and, in default, the General Council shall appoint such person on behalf of the practitioner.

9. Article 6 (1) of the ECHR Art (6)(1) provides: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable amount of time by an independent and impartial tribunal established by law…

10. Case law – principles  Universities are public bodies for the purpose of the Human Rights Act 1998  Whether Art 6 applies to disciplinary proceedings against hospital practitioners has to be taken on a case by case basis, depending on: - the gravity of the charge - the prospect of proceedings resulting in dismissal ; and/ or - the evidence about the practitioners chances of obtaining alternative employment in the event of dismissal

11. Case law (continued)  Hameed v Central Manchester University Hospitals NHS Foundation Trust [2010] EWHC (QB)  Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789  R (G) v The Governors of X School [2011] UKSC 30  Mattu v The University of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB)

12. What does this mean for medical schools? -Current practice -Consequences for the student – immediate and long term -How do you deal with the issue of legal representation? -How do you ensure “fair hearings”?