Adverse Inference in MPTS Proceedings

A Medical Practitioner’s Tribunal (MPT) can draw adverse inference if a doctor does not submit or give evidence, highlighting the importance of expert legal advice and representation.

What is ‘Adverse Inference’?

In broad terms, ‘adverse inference’ means a Medical Practitioner’s Tribunal (MPT) can draw such inferences (conclusions) as appear proper and based on the individual merits of the case, including a negative conclusion from the doctor’s silence or lack of evidence.

In practice, this means an MPT may hold the doctor’s silence against them in fitness to practise proceedings. 

MPT Discretion to draw ‘adverse inference’

A MPT’s power to draw adverse inference is however discretionary and conditional.  An MPT could draw adverse inference where a doctor has failed to comply with a Rule or case management direction and if the following conditions are met (as established in R (Kuzmin) v General Medical Council):

• On the face of it, there is a case to answer;
• The doctor has been given appropriate notice and warning that, if they do not give evidence, then such an inference may be drawn. The practitioner must be given an opportunity to explain why it would not be reasonable for them to give evidence and, if it is found that there is no reasonable explanation, be given an opportunity to give evidence;
• There was no reasonable explanation for the practitioner not giving evidence; and
• There were no other circumstances which would make it unfair to draw an adverse inference.

MPTS Directions and Bundles

Preparing for a Medical Practitioners Tribunal Service (MPTS) hearing is a lengthy process that involves a number of processes and steps, including case management. 

When the GMC informs a doctor that their case has been referred to a MPTS hearing, the GMC will notify the MPTS that a hearing date is required. The MPTS will then use their “case management procedure” to allocate hearing dates and agree arrangements. Without legal advice, a doctor will need to participate in a conference where they will be given instructions to comply with. 

The consequences of failure to comply with the rules and/or case management directions might result in an MPT drawing an adverse inference or exclude evidence and/or make a costs award against a doctor. 

Giving Evidence

Preparing for a MPTS hearing also include deciding whether to attend a hearing and giving evidence.  As one of the world’s most trusted professions, there is a public interest in doctor’s, facing fitness to practise allegations, to give an account of their actions.   Doctors who chose not to give, or present, evidence at an MPT will, more often than not, face the prospect of adverse inference and the consequences of this. 

MPTS Legal Representation – Does it Pay?

The simple fact is that MPTS hearings are complex, daunting, prolonged and legalistic. 

Doctors who decide to self-represent at an MPT hearing will need to clearly understand the process, prepare their own case, speak on their own behalf and ask questions of witnesses and expert witnesses (where applicable).

Studies and research have shown the benefits for doctors who are legally represented.

A 2019 study peer-reviewed study published in the journal BMC Medicine found that doctors who lacked legal representation tended to receive more serious outcomes.  The study results showed clearly that both “non-attendance and lack of legal representation” were consistently related to more serious outcomes.”

A similar 2015 study revealed that – of the two outcomes, suspension or erasure – doctors with legal representation at hearings were significantly more likely to merely be suspended (72%), rather than struck off (28%). In contrast, 69% of self-represented doctors were struck off.

When should you instruct legal representation?

You must instruct legal representation at the earliest possible opportunity when you are notified by the GMC that you are under investigation.  

There are opportunities during the GMC’s investigation process where a case can be closed without the need for a MPTS hearing.  However, where a case is referred to an MPT hearing, having instructed legal representation at the earliest possible opportunity, means we have opportunity to fully assess your case and to work with you on steps necessary to address the concerns and allegations. 

Why Kings View?

Kings View are public access barristers, meaning that you can instruct us directly without having the additional expense of hiring a solicitor first (so we are generally at least one third cheaper).

At Kings View, we have experience defending every level of doctor in all tribunals for the last 10 years and our barristers have additional qualifications from the Bar Standards Board, meaning that we can carry out all the tasks that a solicitor can – including litigation. 

We are proud to have been rated excellent by our clients and have a proven track record of success.