Legal Team Guidance
Making changes to a Rule 15 allegation
Possible changes to a Rule 15 allegation
1In certain circumstances, it may be necessary for you to make changes to the Rule 15 allegation (‘the allegation’). Those changes might include:
Correcting typos or slips
Where we wish to correct an obvious error in a date or cross-reference. These will be uncontroversial and are unlikely to be contested. The substance of what is being alleged is unaffected.
Changes to better define the nature of impairment.
These changes will replace wording or add extra wording to make our allegation clearer. They may be contested.
Withdrawal of charges.
By deleting complete paragraphs or sub-paragraphs of the allegation. These are unlikely to be contested but are significant because we are reducing the totality of our case against the doctor.
Powers to withdraw or amend the allegation
2We can withdraw a matter (or part of it) under Rule 28at any point up to the start of a hearing.
3Rule 28 provides that after a matter has been referred to a Medical Practitioners Tribunal (‘MPT’) and before the opening of the hearing, a Case Examiner (‘CE’) may decide that a matter (or part of it) should not be considered by the MPT.
4Not all amendments to the allegation made prior to the hearing will require a Rule 28 decision. Rule 15 allows the particulars of an allegation to change from those alleged at Rule 7. Amendments to the particulars may be approved by a PLA.
5A Rule 28 decisionshould be requested if we are seeking to withdraw all of a matter (all of the case against the doctor to be considered at a hearing) or part of matter (part of the case against the doctor)where we are seeking to remove a head of impairment (e.g. health) or a substantive and distinct allegation (e.g. removing an allegation of dishonesty but retaining clinical allegations, both of which fall under the head of misconduct).
6Sometimes we may wish to amend the allegation at the hearing. In those circumstances, we would need to make an application to the MPT under Rule 17(6).
7Rule 17(6) provides that the allegation, or the facts upon which it is based, can be amended by the MPT if the amendment can be made without injustice after hearing from the parties.
The test for withdrawal of charges
8Transparency as to why a charge is not found proved is best provided by the MPT giving a reasoned decision on the facts or a submission of no case to answer (see para 32).
9The evidence relating to a charge may be available and may be heard by the MPT, but a witness does not come up to proof. In those circumstances, we should allow the MPT to consider that evidence and make a reasoned decision on the allegation, rather than seeking to withdraw it.
10Acharge should only be withdrawn if the evidence we originally relied on is no longer available and there is no other evidence to support it. For example, we cannot adduce or rely on the evidence or a witness may refuse to attend the hearing.
11To support withdrawal of a charge, Counsel should provide prompt advice which:
adetails the evidence originally relied upon
bstates why that evidence is no longer available
cadvises that there is no prospect of the charge being found proved by the MPT.
12The following advice from Counsel will not be sufficient to support withdrawal of a charge:
athey are not confident a fact will be found proved
bthey think it more likely than not that the charge will not be found proved
cthe evidence to support a fact is weak
din light of evidence heard by the MPT, they no longer think there is a realistic prospect of it being found proved.
The approval process
13We need to ensure that changes to the allegation are only made when appropriate and after proper consideration. The approval route will depend on the stage of the case, the nature of the change and whether the allegation has previously been approved by a Principal Legal Adviser (‘PLA’).
Withdrawal under Rule 28 prior to the start of the hearing
14As noted above, removing or amending the particulars of an allegation may be approved by a PLA as part of the Rule 15 approval process.
15For withdrawal of a charge under Rule 28, you should follow the relevant process map.
16An Assistant Registrar decide whether to refer theRule 28 applicationfor a Case Examiner decision. There is no need to seek instructions from your PLA unless they have previously approved the final allegation (to be included in the Notice of Allegation).
Amendment under Rule 17(6) once the hearing has commenced
17We may not always achieve transparency of a MPT decision if GMC Counsel makes an application toamend the allegation under Rule 17(6). Transcripts of Counsel’s submissionsare not automatically available. The doctor will not object to such an amendment, so the MPT’s reasons are likely to be limited.
18As PLAs are accountable for the allegation to be considered by the Tribunal, it follows that they should be accountable for any amendments made at the hearing. A PLA must approve any withdrawal or clarification of charges. A Legal Adviser may approve any corrections due to obvious typos or slips on their own case, but the relevant Senior Legal Adviser (Manager) (‘SLAM’) and PLA should be made aware of the change afterwards. .
19On ECM cases, any changes will need to be approved by the PLA responsible and, on occasions, may need to be approved by the Assistant Director of Legal and the Director of Fitness to Practise.
20Instructions must be reasoned and recorded. This should also ensure that the application and any subsequent amendments to charges stand up to external scrutiny.
Obtaining instructions
21If PLA approval is required, you should seek instructions as soon as possible. The PLA willoften need to undertake a detailed review, which cannot be rushed.
22For an application under Rule 17(6), we may need to manage GMC Counsel’s expectations as to how quickly a proposed application can be approved. In turn, Counsel may need to manage the expectations of the MPT.
23If the approval relates toa Rule 28 decision, and the deadline for service of the Notice of Allegation is approaching, you should flag this to the PLA, taking into account the requirement for an AR and CE decision.
Withdrawal or clarification of a charge
24When seeking instructions on withdrawal or amendment of particulars you must email yourcluster PLA (or another PLA if they are not available) and attach a copy of the allegation, showing the proposed amendments in track changes. You should explain the reason for the changes.
25When proposing withdrawal of charges, you should also attach a copy of Counsel’s advice.
26The PLA may ask for further information or wish to discuss the request with you before reaching a view.
27If you are seeking instructions during a hearing, you should contact thePLA by telephone or Skype to ensure that they have seen your email. However, to ensure that we have a clear audit trail, it will not usually be appropriate for the PLA to provide instructions over the telephone. The PLA will need to set out their decision rationale in an email, which must be saved to Siebel (along with any relevant attachments).
28In exceptional circumstances (such as extreme urgency which cannot be managed or avoided) the PLA may provide instructions over the telephone, if they agree it is necessary to so.
29If oral instructions are given, you must follow up with an email to the PLA summarising the matters discussed and the instructions given. The email should attach the marked up version of the allegation and any advice from Counsel.
30The PLA will reply to confirm that the written summary is accurate. This email must be saved to Siebel (along with any relevant attachments).
31GMC Counsel must have sight of the written confirmation before making any application to the MPT under Rule 17(6).
32When making the application, Counsel must outline the nature of the amendment soughtand, if applying to withdraw a charge, should explain why the evidence is no longer available to support it.
33It is not sufficient for GMC Counsel to simply indicate that we wish to withdraw or amend certain paragraphs and invite the MPT to agree without a full application and determination. Nor is it sufficient for GMC Counsel to make an application to the MPT but not to make submissions as why the paragraphs should be withdrawn.
Typos or slips
34The Legal Adviser on the case can approve any changes to the charges due to typos or slips. This will avoid any delay to the hearing for uncontroversial reasons. Counsel
35should still seek instructions from the Legal Adviser. After the amendment, you must email your SLAM setting out what has been corrected and why.You should attach a marked up copy of the allegation and cc your PLA. This is so that we have an audit trail of all amendments and to help with monitoring the overall quality of our charges.
Submissions of no case to answer
36Rule 17(2)(g) contains a separate power where the MPT may uphold submissions made by the doctor as to whether sufficient evidence has been adduced by the GMC for some or all of the facts to be proved (a ‘no case to answer’ submission).
37An amendment to the allegation may trigger a no case to answer submission. How we respond to that will depend on the case and the evidence heard. If no evidence is available to support a fact,then we will not usually oppose the submission. If some evidence was heard in relation to a fact, so that there is still some prospect of it being found proved, then we should usually oppose the submission.
38When seeking instructions, you should email your PLA with:
aa recommendation as to what our position should be with reference to the evidence heard / evidence no longer available
bthe Notice of Allegation
cadvice from Counsel or you which explains:
iwhat evidence was originally relied upon to include an alleged fact
iito what extent that evidence did not come up to proof
iiithe prospect of a paragraph being found proved as a result.
39Again, to ensure a clear audit trail and decision rationale, the PLA instructions must be recorded in writing and saved to Siebel (with any relevant attachments).
Type / Instruction /approval routeAmendments to particulars of an allegation prior to the hearing / PLA
Withdrawal under R28 - PLA has not approved allegation / SLAT AR > Case Examiner
Withdrawal under R28 - PLA has approved allegation / PLA > SLAT AR > Case Examiner
Amendment under R17(6) to correct typo or slip / LA > MPT
Amendment under R17(6) for clarification / PLA > MPT
Amendment under R17(6) for withdrawal of charges / PLA > MPT
Response to a no case answer submission / PLA >MPT
Any instructions in an ECM case / PLA > AD of Legal / Director of FTP (where necessary) > MPT
Summary of instruction routes
1