On Friday, 23 August 2019, Gunnercooke LLP lodged an appeal to the Court of Appeal on behalf of a doctor in respect of the judgment of the Administrative Court. Sunil Abeyewickreme, Partner at Gunnercooke LLP, led the team handling this important issue.
The judgment of the Divisional Court of Lord Justice Higginbottom and Mr Justice Butcher that was handed down in respect of the judicial review application in relation to the determination of the Medical Practitioners Tribunal (MPT) where it was decided that as a matter of principle the MPT had the power to draw an adverse inference from the fact that a doctor against whom charges are made does not give evidence, ie the right of silence is flawed.
This is a decision of a Divisional Court with no experience in the criminal/regulatory field and will now impact all healthcare regulators, including the NMC, GDC, HCPC and GMC. The worry is that the regulators will jump on the bandwagon with no guidance, no rules nor indeed any clear policy stated. The judgment contains facts that are wrong. The Divisional Court did not identify the actual power to draw adverse inferences beyond the right to self-regulate which is wholly unsatisfactory and not compelling.