Kuzmin, R (On the Application Of) v General Medical Council

Disciplinary tribunals have an inherent procedural power to draw an adverse inference from a charged practitioner’s failure to give evidence. No express statutory provision, statutory instrument, regulator guidance or policy is required.

The power is subject to procedural fairness. Ordinarily, the tribunal should establish a prima facie case, give appropriate notice and warning, allow the practitioner to explain the failure to give evidence, and ensure that no reasonable explanation or other unfairness prevents the inference. An adverse inference does not reverse the burden or standard of proof.

The claimant, a registered medical practitioner, challenged an interlocutory determination of a Medical Practitioners Tribunal that it had power in principle to draw an adverse inference from his failure to give evidence in disciplinary proceedings concerning alleged dishonesty.

The claimant argued that disciplinary proceedings were sufficiently criminal or hybrid in character to attract a common law prohibition on adverse inferences from silence, and that any change required legislation, rules or formal regulatory guidance. The central issue was whether the tribunal possessed the power, and if so whether its exercise was necessarily unfair.

1. Claim dismissed. The MPT’s determination that it had power in principle to draw an adverse inference was lawful.
2. Disciplinary proceedings are civil proceedings concerning the practitioner’s civil rights and obligations. They are not criminal proceedings or a criminal/civil hybrid, although procedural fairness may require safeguards resembling those applicable in criminal cases. The fairness of the process must be assessed as a whole and is fact-sensitive.
3. A fact-finder generally has power to draw appropriate inferences from primary facts as part of its power to determine facts. The former practice of disciplinary tribunals not to draw adverse inferences from silence was a procedural practice, not a rule embedded in the common law.
4. The MPT’s power arose from its general power to manage its own procedure and draw reasonable inferences. It did not depend on Medical Act 1983, the Rules, a statutory instrument, or GMC guidance. Drawing an inference does not reverse the burden or standard of proof.
5. The power is constrained by procedural fairness. Ordinarily, the tribunal should be satisfied that:
   • a prima facie case to answer has been established;
   • the practitioner has received appropriate notice and warning, and an opportunity to explain the failure and, if appropriate, to give evidence;
   • there is no reasonable explanation for the failure; and
   • no other circumstances make the inference unfair.
6. Whether an inference should actually be drawn remains dependent on the circumstances of the individual case. The tribunal’s in-principle ruling did not determine that an inference would be drawn against the claimant.

Guidance from regulators confirming the existence and practical use of the power could nevertheless assist tribunals and practitioners.

The judgment describes a challenge by judicial review to an in-principle determination made by the Medical Practitioners Tribunal. Permission to bring the claim was granted on oral renewal by Julian Knowles J. The Administrative Court dismissed the claim.