R (Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin)

The High Court has recently ruled that a GMC tribunal is entitled to draw an adverse inference from a registrant’s refusal to give evidence.

In this case Dr Kuzmin appeared before the GMC’s Medical Practitioners Tribunal Service committee.  He was accused of dishonestly failing to tell his employer of certain interim conditions.

He submitted a written witness statement as a means of a full explanation for his conduct.  An unsuccessful half time submission application was made after which time Dr Kuzmin’s representative applied to withdraw the witness statement and indicated he did not intend to give evidence.

A half time submission is a process whereby a registrant may make a submission that there is ‘no case to answer’ after, in this case, the GMC,  has  presented  its  case and has  failed  to discharge  the burden of persuasion, and in consequence, that the case (or a part of it) should not proceed further.

The GMC invited the MPTS to draw an adverse inference, or in other words, “that the failure of the Claimant to give evidence was capable of giving, and did in fact give, rise to the inference that the Claimant has no innocent explanation for his failure to disclose the conditions or at least no innocent explanation that would withstand the scrutiny of questioning.”

Lord Justice Hickinbottom said:

“An MPT panel [therefore] has the power to draw an adverse inference from the failure of a charged person to give evidence at all or in relation to a particular issue/question, without any express sanction by statute, statutory instrument or GMC guidance/policy; and without any express guidance on how that power should be exercised.”

Hickinbottom LJ continued by saying that

“… disciplinary tribunals in the position of the MPT did not generally draw adverse inferences from silence as a matter of practice, rather than as the result of a common law rule….”

Disciplinary procedures are civil, not criminal.  In criminal law, the right to remain silent is a statutory right and one that does not have attached to it the right to draw any inference.  This is not the case in civil proceedings as this case has demonstrated.

It is likely that the GMC will produce further guidance to doctors on the matter following this court ruling. 

Hickinbottom LJ said:

“However, that does not mean that, for the avoidance of doubt, guidance from the GMC (and other regulators of, amongst others, the healthcare professions) confirming the existence of the power and how it might be used would not be useful for disciplinary tribunal panels and the practitioners who might appear before them: such guidance, which might be short, could clearly be of considerable practical assistance…Speaking for myself, I hope that, after any consultation they deem helpful, the regulators will consider publishing such advice as they each consider appropriate.”