Keeping silent at GMC hearings could draw “adverse inferences,” says High CourtBMJ 2019; 366 doi: https://doi.org/10.1136/bmj.l5224 (Published 20 August 2019) Cite this as: BMJ 2019;366:l5224
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This presents an interesting conundrum.
The permissibility of adverse inferences to be drawn, in certain well defined circumstances such as failure to mention something later relied upon as a defence, is well established in England and Wales1; the right to silence is not absolute. Thus, this ruling brings GMC hearings in line with the prevailing evidentiary standards in England and Wales.
However, Scottish law has no restrictions to the rights of an individual to choose to maintain their silence during criminal proceedings and no adverse inferences are allowed to be drawn from this2. Accordingly, Scottish medical practitioners will now find their rights, when undergoing GMC hearings, curtailed by comparison to those available to them in criminal courts in Scotland. If undergoing investigation which may result in criminal charges, a Scottish doctor may find themselves compelled to offer evidence to avoid a GMC hearing drawing disfavourable conclusions and in so doing compromise what may be their best strategy in a forthcoming trial.
If tribunals were to bow to current Scottish law for Scottish cases and the High Court ruling for English and Welsh cases a system would be created under which not all medical practitioners are given the same treatment when coming to hearings, which is grossly unfair. Similarly, it is no more fair to give to an individual before a GMC tribunal fewer rights than they would enjoy in any court in the jurisdiction to which they belong. These disparities need to be addressed to ensure an equitable system.
1. The Home Office. PACE Code H. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploa.... Accessed 30.08.19.
2. Legislation.gov.uk. Criminal Procedure (Scotland) Act 1995. Available at: http://www.legislation.gov.uk/ukpga/1995/46/contents. Accessed: 30.08.19.
Competing interests: No competing interests