COVID-19 challenged many assumptions, and at the General Pharmaceutical Council (GPhC) one of these challenges surrounded how a fitness-to-practise (FtP) hearing would be held. The traditional view, that hearings would take place with all the parties in one room and the witnesses called in person, was no longer seen as the default way to run a hearing.

So, between November 2021 to February 2022, the GPhC consulted on a proposal to continue to hold remote hearings in some circumstances.

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The GPhC received many responses and in a detailed analysis, it was felt that overwhelmingly, hearings should continue to be held remotely when fair and practical to do so. The issue therefore became when was it fair and practical to hold a remote hearing.

The consultation recorded that: “The most common theme identified in responses was that remote hearings should not take place if participants requested or would prefer a face-to-face hearing.”

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Roll on to December 2022, and the GPhC fitness-to-practise hearing format guidance was published stating:

“When we schedule a fitness to practise hearing we will ask the professional whether they think it should be remote or in person, and to give brief reasons for their choice. Professionals will be able to read this guidance, which includes the list of things they may want to consider. Although we will take the professional’s view into account, there may be reasons for us not to opt for the professional’s preferred format. In any case, we will let the professional know what the format of the fitness to practise hearing will be, and the reasons why.”

 

How is this working in practice?

 

For some registrants it is working well, they can participate in a hearing in familiar surroundings without the expense of attending an in-person hearing. There are also cost savings for the GPhC.

But what about the anxious registrant, who has often waited many years for their hearing and have expressed a firm preference for an in-person hearing?

The factors to be considered include: the complexity of a hearing, the extent to which facts are agreed, whether a registrant is represented and whether vulnerable witnesses will be giving evidence and access to information technology.

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All these are important factors - although arguably, whether a registrant is represented is not necessarily a fair consideration.

In the case of a disagreement between the parties, the process is for the ‘adjudications team’ to make a recommendation. The registrant does not see this document, but it goes to the chair with listing questionnaires and a format decision is made.

It appears in cases of dispute there is little consideration given to a pharmacist’s request for an in-person hearing if, in fact, they don’t come within one of the other criteria.

A virtual hearing is not always as swift and convenient as would be hoped. In one recent hearing it was found that:

• The panel had initial difficulties joining because of connection issues.
• Cross-examination took place over unstable connections sometimes. It is accepted law that witness demeanour is an ineffective method to exclusively evaluate credibility and reliability but the registrant should have the best possible opportunity to test the GPhC evidence.
• At one point, the hearing was paused so instructions could be given to contractors not to switch off a panel member’s broadband.
• On another occasion, a panel member’s video feed blurred, which not only interrupted the registrant’s counsel’s submissions but meant that he couldn’t be seen during the submission.

The GPhC does not appear to have published figures for the number of cases where an in-person hearing is requested by the registrant and a virtual hearing is arranged.

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In view of the amount of time that most registrants have waited to get to a hearing and the unsatisfactory nature of some of the technology, it is arguable that to ensure a fair hearing more weight should be given to the registrant’s views on whether they are in-person in front of the panel who will be determining their fitness to practise.

 

This is a general overview and any views or reflections are the author’s own. Independent legal advice should be sought for any specific concerns.

Susan Hunneyball is a solicitor and partner at Gordons Partnership.