Tuesday, 12 June 2012

GMC and Dr Richard Alexander Scott

Dr Richard ScottDr Richard Alexander Scott, ex Christian missionary, and a General Medical Practitioner allegedly asked one of his patients if he had considered faith in Jesus during his consultation in National Health Service surgery. Patient was allegedly distressed by this and his mother wrote a complaint to General Medical Council, the regulator of medical profession.

Setting a disciplinary Fitness to Practice  hearing was a bit problematic for GMC but eventually, GMC offered telephone evidence by patient and in private hearing by GMC Investigation Committee.

 Dr Scott's barrister, Mr Diamond objected on the grounds that body language of the witness needs to be seen by FTP panel members and others present. We are not aware that Mr Diamond, GMC or High Court are keen on televised record in that case and not just transcripts. Surely, fairness principles should apply to appeals as well and to all doctors.

Considering vulnerability of patient it may feel right to GMC to offer evidence by telephone, but giving evidence via video link is another possibility.

Of course, journalists can be present in family courts which are rather private and non-disclosure of identity to public can be assured. Assuring a degree of privacy does not mean that there should be no public scrutiny at all.

In ASIC v Rich [2004] 467 judge evaluated arguments for the way evidence can be given and concluded that it depended on circumstances of the particular case:


Good luck if you can find where it is. The case is probably the biggest in Australian history and there were many interlocutory judgments and in different countries, some not cited.


Investigation Committee – Determination on Defence application to adjourn proceedings - 12 June 2012
Dr Richard Alexander SCOTT (2890748)

Mr Hurst:

The Committee has considered your application, on behalf of the General Medical Council (GMC), to hear a witness, Patient A, via telephone and in private. You provided the Committee with a witness statement from Patient A in which he stated that he was unable to attend the hearing as a result of both his physical and mental health. Patient A believed that his health would be negatively affected if he were to give evidence by any other means than by telephone and in private. Patient A stated further that he did not wish his identity to be revealed to the public and if he were to be identified this may negatively affect his job.
In addition to the witness statement of Patient A the Committee was provided with an email from Patient A’s GP, dated 11 June 2012, in which it was confirmed that attending the hearing in person, or by way of video link, would have a very serious adverse effect upon Patient A’s mental and physical health.

In response to the points raised within the Defence’s skeleton argument, you referred the Committee to the case of R (Thompson) v Law Society [2004] which you submitted demonstrated that a decision by a regulator to reprimand a professional person, does not amount to a determination of that person’s civil rights. As the Investigation Committee does not have the power to make determinations adverse to a Doctor’s fitness to practice, the Investigation Committee is not empowered to determine “civil rights and obligations” so as to engage Article 6 of the Human Rights Act.
You submitted, therefore, that the consideration for the Investigation Committee was one of proportionality. You brought the Committee’s attention to the case of R (Bonhoeffer) v General Medical Council (2010) which you submitted demonstrated that even in cases that have the possibility of impacting on civil rights, the need for the attendance of the complainant is not absolute. You submitted that the principle of a fair hearing is not limited to fairness to the doctor, and that as Patient A was the only other person who was present at the consultation in question, his evidence is highly relevant and should be admitted accordingly.
You additionally submitted that even if Patient A was unable to attend, even by telephone, his written evidence could properly be admitted as hearsay evidence in accordance with Rule 11(7)(a) and determined in the round by the Committee; assessing the appropriate weight to be accorded to it.

Following questions from the Committee you confirmed that you do not seek to rely upon Rule 36 of the General Medical Council (Fitness to Practise) Rules 2004 as you do not believe Patient A’s circumstances allow for him to be classified as a vulnerable witness. However, you submitted that Rule 36 was of use to the Committee as it demonstrated that it is appropriate to take into account the circumstances of witnesses.

Mr Diamond, counsel on behalf of Dr Scott opposed your application and indicated that evidence via telephone is less than optimal in comparison to having witnesses give live evidence, or at least see the witness on a video link.  He submitted that he would not be able to see the witness or regard his demeanour if he was to give evidence via telephone.

Mr Diamond submitted further that to accept evidence by way of telephone would be in breach of Dr Scott’s rights under Article 6 and the Common Law. The basic position under both Article 6 and the Common law is that the Defendant in a criminal trial should be confronted by his accusers in order that he may cross examine them and challenge their evidence. Evidence by telephone does not constitute confrontation and fails to accord the right to a fair trial to Dr Scott. The Committee were referred to the cases of R v Davies [2008], Luca v Italy(2003) and  PS v Germany (2001).
Mr Diamond submitted further that the defence did not accept the evidence put forward by Patient A’s GP and would have questions to ask this witness. It was submitted that the defence believed Patient A to be well enough to attend.

The Committee has accepted the advice of the Legal Assessor including his advice that the previous Committee made no final decision on the question whether Patient A should be required to attend, but only required the GMC to make further attempts to secure Patient A’s attendance.

The Committee has been satisfied that the GMC has made adequate attempts, since the previous hearing, to secure Patient A’s attendance and has received no evidence to suggest that this is not the case.

In reaching its decision, the Committee has considered all the circumstances. These included:

  • the willingness and ability of the witness to attend in person,
  • the impact upon the witness if he were to attend,
  • the importance of the witness’s evidence to the proceedings, and
  • fairness to all parties.

The Committee in determining this matter have accepted the content of the email from Patient A’s GP which confirms that attendance at this hearing would have a very serious adverse effect upon Patient A’s mental and physical health. The Committee has no reason to doubt the information provided by Patient A’s registered GP and furthermore does not consider it necessary for the GP to be present at this hearing. The Committee considers the medical evidence to be clear.

The Committee considers that this matter ought to be heard and dealt with now in fairness both to the doctor and Patient A and in the public interest. The only way in which this can be achieved is by hearing and weighing Patient A’s evidence by telephone or by excluding it. The Committee considers that it would be better for it to hear the evidence than not to. Mr Diamond will be able to cross examine Patient A. The evidence adduced as to the patient’s health and circumstances has satisfied the Committee that it would be inappropriate for Patient A to be required to attend this hearing.

Having taken all factors into account the Committee has determined to accede to your application and hear the evidence of this witness via telephone.

When considering whether the evidence should be heard in private the Committee notes that the disputed facts relate to a medical consultation between Patient A and the doctor which, in itself, attracts a certain level of confidentiality. Furthermore, the Patient’s religious beliefs and current health are likely to be discussed in significant detail which all attracts a level of confidentiality. The Committee considers that it would not be possible to separate out the public and private aspects of Patient A’s evidence and accordingly has decided that his oral evidence shall be heard in private.

On a final point the Committee also wishes to stress the importance of maintaining Patient A’s anonymity and requests that both Counsel continue to exercise great caution when speaking in public session.

The Committee will, of course, when weighing up Patient A’s evidence, bear in mind that he gave his evidence via telephone and will, in due course, receive any relevant submissions from the parties.

Finally, the Committee is mindful that certain safeguards should be put in place to ensure the quality of Patient A’s evidence is protected. As such, the Committee has determined that Patient A must be accompanied by an employee of the General Medical Council, or an independent solicitor or legal executive, whilst giving evidence. This individual will be relied upon to:
  • verify Patient A’s identity;
  • administer the oath or affirmation;
  • provide Patient A with copies of documents referred to during his evidence;
  • ensure Patient A is not prompted or coached during his evidence,
  • ensure Patient A does not breach his oath during any breaks to be taken.

The Committee is mindful that it is not in a position to dictate how long the GMC will require to put in place such safeguards and therefore invite you to address the Committee on this matter once initial enquiries have been made.

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