Miller v General Medical Council

A fitness-to-practise hearing must ordinarily be held in public. Any derogation from that rule must be shown to be necessary and proportionate, and the burden lies on the party seeking it. A panel must identify the applicable exception and assess the evidence objectively. A witness’s asserted refusal to give evidence is insufficient, without evidence establishing a settled intention and some objective foundation for the protection sought. The restriction must also be no wider than strictly necessary. A direction that an entire substantive hearing be private will require particularly strong justification.

A consultant psychiatrist challenged a decision of a Fitness to Practise Panel directing that the whole of disciplinary proceedings against him be held in private. The application had initially been for renewal of permission to bring judicial review proceedings, but the parties agreed that it should be treated as the substantive hearing.

The Panel had acted under rule 41(2) of the GMC (Fitness to Practise) Rules 2004. It considered that the principal witness would probably refuse to give evidence unless the entire hearing was private. The central issues were whether that intention had been established and whether it objectively justified a complete departure from the claimant’s Article 6 right to a public hearing.

1. The claim succeeded. The Panel’s decision directing that the substantive fitness-to-practise hearing be held in private was quashed. The court declined to order that the future hearing must be public, since any later application would have to be determined on the facts then existing.
2. Rule 41(2) had to be read subject to Article 6 of the European Convention on Human Rights. The default position was a public hearing, and the right being derogated from was the claimant’s right. The GMC therefore bore the burden of establishing both the need for a derogation and the need for the extent of derogation sought.
3. The principles in R v Legal Aid Board, ex parte Kaim Todner [1998] EWCA Civ 958; [1999] 1 QB 966 required an objective foundation for a claim that publicity would cause sufficient prejudice. The Panel had to distinguish between the complete closure of proceedings and more limited measures such as anonymisation, screens or restricted evidence.
4. The evidence did not establish that the witness had a sufficiently settled intention not to give evidence unless the whole hearing was private. The witness had not been called, and the Panel concluded only that he would probably not give evidence. That was insufficient to justify derogation from the claimant’s Article 6 right.
5. Even if the witness’s intention had been established, there was no evidence providing an objectively reasonable foundation for requiring the entire hearing to be private. The evidence indicated that anonymisation and screens could address legitimate concerns. The omission was independently fatal to the Panel’s conclusion that complete privacy was necessary and proportionate.
6. The approach of balancing the public-hearing rule against general pragmatic considerations was erroneous. The Panel first had to identify the relevant Article 6 exception, establish the facts said to engage it, and impose no greater restriction than strictly necessary.

Not stated in the judgment. The decision was a first-instance judicial review determination by the High Court (Administrative Court).