PART 6 Meetings, hearings etc.

Order of proceedings at principal hearings before the Disciplinary Committee

35.—(1) Subject to the following provisions of this rule, a principal hearing before the Disciplinary Committee shall be conducted in the following three stages—

(a) findings of fact;

(b) findings on the question of—

(i) in fitness to practise proceedings, impairment of fitness to practise, or

(ii) in disqualification proceedings, whether the offence or misconduct is such that, in the opinion of the Committee, it renders the registrant concerned, or would if he or it were a pharmacist render him, unfit to be a pharmacist; and

(c) consideration of sanction, where appropriate.

(2) Unless the Committee determines otherwise, the order of proceedings at the principal hearing shall be as follows—

(a) the chair shall declare the hearing open;

(b) where the registrant concerned is not present or represented at the hearing, the chair—

(i) shall require the secretary to adduce evidence that all reasonable efforts have been made to serve the Notice of Hearing on the registrant concerned, and

(ii) having consulted the committee, may—

(aa) if he is satisfied that the Notice of Hearing has been duly served, proceed with the hearing in the absence of the registrant concerned, or

(bb) adjourn the hearing and issue appropriate directions;

(c) the chair shall cause the particulars of the allegation to be read out;

(d) the chair shall—

(i) inquire whether the registrant concerned wishes to make any objections to the particulars of the allegation on a point of law, and

(ii) inquire whether the registrant concerned wishes to make any admissions;

(e) where facts are admitted by the registrant concerned, the chair shall announce that such facts have been found proved;

(f) where the registrant concerned admits that his fitness to practise is impaired—

(i) the chair shall announce that the registrant concerned’s fitness to practise is impaired,

(ii) the committee may receive into evidence any agreed statement of facts,

(iii) the chair shall require the presenter to make an opening statement and to bring to the Committee’s attention all relevant facts admitted by the registrant concerned, and any aggravating features of the case or public interest concerns,

(iv) notwithstanding any admission of facts by the registrant concerned, the Committee may hear evidence from any witness where it considers it desirable to do so,

(v) where facts remain in dispute, the Committee may receive documentary and oral evidence from the parties before retiring to make findings on the disputed facts and announcing its findings in public, and

(vi) the procedure in sub-paragraphs (g) to (m) shall not apply;

(g) where impairment of fitness to practise is not admitted, the presenter may make an opening statement and may—

(i) adduce evidence in support of the Society’s case, and

(ii) call witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony and subject to paragraph (5));

(h) upon the close of the Society’s case, if—

(i) the registrant concerned asks to make an application that the case should not proceed further, or

(ii) the Committee decides it ought to consider in any event whether the case should proceed further,

after hearing submissions from the parties (where present) on this issue, the Committee may determine that the case should not proceed further;

(i) except where the Committee has determined that the case should not proceed further under sub-paragraph (h), the registrant may—

(i) adduce evidence in support of his case, and

(ii) call witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony and subject to paragraph (5)), and may make a closing statement;

(j) the Committee shall deliberate in private in order to make its findings on the facts and shall then announce the findings it has made in the presence of the parties (where present);

(k) where it considers it to be necessary to do so, the Committee may give reasons for its findings of fact;

(l) the Committee shall invite representations from the parties as to whether, on the basis of any facts found proved—

(i) in fitness to practise proceedings, the registrant’s fitness to practise is impaired, or

(ii) in disqualification proceedings, the offence or misconduct is such that, in the opinion of the Committee, it renders the registrant concerned, or would if he or it were a pharmacist render him, unfit to be a pharmacist;

(m) the Committee shall deliberate in private, and then in the presence of the parties (if present), shall announce its decision on whether—

(i) the registrant’s fitness to practise is impaired, or

(ii) in disqualification proceedings, the offence or misconduct is such that, in the opinion of the Committee, it renders the registrant concerned, or would if he or it were a pharmacist render him, unfit to be a pharmacist;

and shall give reasons for its decision;

(n) in all cases the Committee, before deciding to impose a sanction—

(i) may invite any person who, in its opinion, has a direct interest in the proceedings to submit written representations on the issue within such time as the Committee may direct,

(ii) shall invite representations from the Society as to the appropriate sanction (if any) that should be imposed, and shall inquire of it whether it is aware of any relevant matters in the previous history of the registrant concerned, and

(iii) shall invite representations from the registrant concerned as to any mitigating circumstances which may affect the Committee’s decision on the sanction, if any, to be imposed;

(o) the Committee shall deliberate in private and shall then in the presence of the parties (where present) announce its decision on sanction and give reasons for its decision; and

(p) as regards interim measures, the Committee shall—

(i) invite representations from the parties (where present), on whether or not an order for immediate suspension or imposition of conditions should be made,

(ii) take any representations received into account before deciding whether or not to make an order for immediate suspension or imposition of conditions,

(iii) deliberate in private,

(iv) announce its decision in the presence of the parties (where present), and

(v) give reasons for its decision.

(3) Where the Committee is considering an allegation in disqualification proceedings, it may, instead of issuing a direction under section 80(1) of the Act—

(a) agree with the registrant that he or it will comply with such undertakings as the Committee considers appropriate, which may include undertakings with regard to providing the Society with evidence of his or its continued compliance with the undertakings (where undertakings have been agreed, the proceedings shall be stayed); or

(b) dispose of the case by way of a reprimand or a warning.

(4) Where the Society becomes aware that a registrant has failed to comply with any undertakings imposed by the Committee under paragraph (3)(b)—

(a) the Committee shall resume its consideration of the matter (the procedure at the hearing being for the Committee to determine); and

(b) the Committee shall reconsider the sanction imposed, and may instead issue a direction under section 80(1) of the Act.

(5) The chair may refuse to allow a witness to give oral evidence, or to give evidence on a particular matter, if he is satisfied that all or part of the evidence that the witness is to provide, or is to provide on that matter, should have been disclosed to the party not calling the witness at an earlier stage in the proceedings.

(6) Notwithstanding the procedure set out in paragraph (2), the Committee may allow the parties to make additional submissions at any time.

Order of proceedings at principal hearings before the Health Committee

36.—(1) Unless the Health Committee determines otherwise, the order of proceedings at the principal hearing before the Committee shall be as follows—

(a) the chair shall declare the hearing open;

(b) where the registrant concerned is not present or represented at the hearing, the chair—

(i) shall require the secretary to adduce evidence that all reasonable efforts have been made to serve the Notice of Hearing on the registrant concerned, and

(ii) having consulted the Committee, may—

(aa) if he is satisfied that the Notice of Hearing has been duly served, proceed with the hearing in the absence of the registrant concerned, or

(bb) adjourn the hearing and issue appropriate directions;

(c) the chair shall cause the particulars of the allegation to be read out;

(d) the chair shall—

(i) inquire whether the registrant concerned wishes to make any objections to the particulars of the allegation on a point of law, and

(ii) inquire whether the registrant concerned wishes to make any admissions;

(e) where facts are admitted by the registrant concerned, the chair shall announce that such facts have been found proved;

(f) where the registrant concerned admits that his fitness to practise is impaired—

(i) the chair shall announce that the registrant concerned’s fitness to practise is impaired,

(ii) the chair shall require the presenter to make an opening statement and to bring to the Committee’s attention all relevant matters, including any aggravating features of the case or public interest concerns, and

(iii) the procedure in sub-paragraphs (g) to (j) shall not apply;

(g) where impairment of fitness to practise is not admitted, the presenter shall make an opening statement, and may—

(i) adduce evidence in support of the Society’s case, and

(ii) call witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony and subject to paragraph (2));

(h) the registrant concerned may adduce evidence, and may call witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony and subject to paragraph (2)), and may make a closing statement;

(i) where essential facts are in dispute (whether or not impairment of fitness to practise is admitted), a party may request the Health Committee to make a finding on those facts, and in these circumstances, the Committee—

(i) shall deliberate in private, and

(ii) shall announce its findings in the presence of the parties;

(j) where impairment of fitness to practise is not admitted, the Health Committee shall deliberate in private, and shall announce its decision on whether the registrant’s fitness to practise is impaired, together with the reasons for such decision, in the presence of the parties (where present);

(k) where the Health Committee finds that the registrant’s fitness to practise is impaired, it shall—

(i) inquire whether any previous matters have been recorded against the registrant; and

(ii) invite representations from the parties as to which sanction, if any, should be imposed;

(l) in all cases the Committee, before deciding to impose a sanction—

(i) shall invite representations from the Society as to the appropriate sanction (if any) that should be imposed, and shall inquire of it whether it is aware of any relevant matters in the previous history of the registrant concerned;

(ii) shall invite representations from the registrant concerned as to any mitigating circumstances which may affect the Committee’s decision on the sanction, if any, to be imposed;

(m) the Committee shall deliberate in private and shall then in the presence of the parties (where present) announce its decision on sanction and give reasons for its decision; and

(n) as regards interim measures, the Committee shall—

(i) invite representations from the parties (where present), on whether or not an order for immediate suspension or imposition of conditions should be made,

(ii) take any representations received into account before deciding whether or not to make an order for immediate suspension or imposition of conditions,

(iii) deliberate in private,

(iv) announce its decision in the presence of the parties (where present), and

(v) give reasons for its decision.

(2) The chair may refuse to allow a witness to give oral evidence, or to give evidence on a particular matter, if he is satisfied that all or part of the evidence that the witness is to provide, or is to provide on that matter, should have been disclosed to the party not calling the witness at an earlier stage in the proceedings.

(3) Notwithstanding the procedure set out in paragraph (1), the Committee may allow the parties to make additional submissions at any time.

Order of proceedings in relation to registration cases before the Health or Disciplinary Committee

37.—(1) This Rule shall apply where the Registrar is seeking the advice of the Health or Disciplinary Committee—

(a) under rule 6(5) of the Registration Rules (which relates to whether an applicant for registration’s fitness to practise may be impaired for reasons other than adverse physical or mental health);

(b) under rule 6(7) of the Registration Rules (which relates to whether an applicant for registration’s fitness to practise may be impaired for reasons of adverse physical or mental health);

(c) under rule 8(3) of the Registration Rules (which relates to applications to move between different parts of the register);

(d) under rule 17(2)(a) of the Registration Rules (which relates to proceedings in respect of fraud or error or fitness to practise matters prior to registration).

(2) The procedure of the Health or Disciplinary Committee at the hearings into these matters shall be as follows—

(a) the chair shall declare the hearing open;

(b) where the applicant or registrant concerned is not present or represented at the hearing, the chair—

(i) shall require the secretary to adduce evidence that all reasonable efforts have been made to serve the Notice of Hearing on the applicant or registrant concerned, and

(ii) having consulted the committee, may—

(aa) if he is satisfied that the Notice of Hearing has been duly served, proceed with the hearing in the absence of the applicant or registrant concerned, or

(bb) adjourn the hearing and issue appropriate directions;

(c) where the applicant or registrant concerned is present, the chair shall inquire whether he wishes to make any admissions of fact;

(d) where the applicant or registrant concerned makes any admissions of fact, the chair shall announce that such facts have been found proved;

(e) the presenter shall make an opening statement, outlining what he considers to be the relevant circumstances of the case and the advice sought from the Committee;

(f) the applicant or registrant concerned may adduce evidence, and may call witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony and subject to paragraph (3));

(g) the presenter may adduce evidence in rebuttal of the position of the applicant or registrant concerned and in support of the position of the Society, including by calling witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony and subject to paragraph (3);

(h) the applicant or registrant concerned may make a closing statement;

(i) the Committee shall deliberate in private and shall then announce its advice; and

(j) the Committee shall give reasons for its advice, where appropriate.

(3) The chair may refuse to allow a witness to give oral evidence, or to give evidence on a particular matter, if he is satisfied that all or part of the evidence that the witness is to provide, or is to provide on that matter, should have been disclosed to the party not calling the witness at an earlier stage in the proceedings.

(4) Notwithstanding the procedure set out in paragraph (2), the Committee may allow the parties to make additional submissions at any time.

Order of proceedings at a review or restoration hearing

38.—(1) Unless the relevant Committee determines otherwise, the order of proceedings at a review hearing before the Health or Disciplinary Committee, or a restoration hearing before the Disciplinary Committee, shall be as follows—

(a) the chair shall declare the hearing open;

(b) where the applicant or registrant concerned is not present or represented at the hearing, the chair—

(i) shall require the secretary to adduce evidence that all reasonable efforts have been made to serve the Notice of Hearing on the applicant or registrant concerned, and

(ii) having consulted the committee, may—

(aa) if he is satisfied that the Notice of Hearing has been duly served, proceed with the hearing in the absence of the applicant or registrant concerned, or

(bb) adjourn the hearing and issue appropriate directions;

(c) the presenter—

(i) shall inform the Committee of the background to the case, and the directions previously issued in respect of the applicant or registrant concerned,

(ii) shall draw the attention of the Committee to any relevant evidence including transcripts of previous hearings, and

(iii) may adduce further evidence, and may call witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony and subject to paragraph (3));

(d) the applicant or registrant concerned may adduce evidence, and may call witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony and subject to paragraph (3));

(e) the presenter may adduce evidence in rebuttal of the position of the applicant or registrant concerned and in support of the position of the Society, including by calling witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony and subject to paragraph (3));

(f) the applicant or registrant concerned may make a closing statement;

(g) the Committee shall deliberate in private and shall announce its decision in the presence of the parties (where present);

(h) the Committee shall give reasons for its decision.

(2) Where the Disciplinary Committee decides that a person should be restored to the register, the secretary shall notify the Registrar accordingly.

(3) The chair may refuse to allow a witness to give oral evidence, or to give evidence on a particular matter, if he is satisfied that all or part of the evidence that the witness is to provide, or is to provide on that matter, should have been disclosed to the party not calling the witness at an earlier stage in the proceedings.

(4) Notwithstanding the procedure set out in paragraph (1), the Committee may allow the parties to make additional submissions at any time.

Order of proceedings at an interim order hearing

39.—(1) Unless the relevant Committee determines otherwise, the order of proceedings at an interim order hearing before the Health or Disciplinary Committee shall be as follows—

(a) the chair shall declare the hearing open;

(b) where the registrant concerned is not present or represented at the hearing, the chair—

(i) shall require the secretary to adduce evidence that all reasonable efforts have been made to serve the Interim Order Notice on the registrant concerned, and

(ii) having consulted the committee, may—

(aa) if he is satisfied that the Interim Order Notice has been duly served, proceed with the hearing in the absence of the registrant concerned, or

(bb) adjourn the hearing and issue appropriate directions;

(c) the presenter shall inform the Committee of the reasons why it may be necessary to make an interim order, or to revoke, confirm, vary or replace any order previously made, and may adduce evidence and call witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony);

(d) the registrant concerned may make representations as to why an interim order should not be made, or should be revoked or not confirmed, varied or replaced, and he may adduce evidence and call witnesses (provided that the chair is satisfied that the witness is in a position to provide relevant testimony);

(e) the Committee shall deliberate in private and shall then announce its decision, together with the reasons for its decision, in the presence of the parties (where present).

(2) Where the terms of the order to be made or continued, or the terms of the variation to the order, or its revocation, are agreed between the parties, the Committee may take the agreed steps without the need for a hearing.

Postponements and adjournments

40.—(1) The chair of a fitness to practise committee may, of his own motion or upon the application of a party, postpone any meeting or hearing of which notice has been given under these Rules before the hearing begins.

(2) A fitness to practise committee may, of its own motion or upon the application of a party, adjourn the proceedings at any stage, provided that—

(a) no injustice is caused to the parties; and

(b) the decision to adjourn is made after hearing representations from the parties (where present).

(3) In considering whether or not to grant a request for postponement or adjournment, the chair or committee shall, amongst other matters, have regard to—

(a) the public interest in the expeditious disposal of the case;

(b) the potential inconvenience caused to a party or any witnesses to be called by that party;

(c) the conduct of the party seeking the postponement or adjournment; and

(d) fairness to the parties.

(4) Where a party other than the Society applies for a postponement or adjournment on grounds of ill health

(a) he shall be required to adduce appropriate medical certification in support of that application; and

(b) the chair or committee may, if not satisfied by the medical certification produced, require the person to submit to be examined by a registered medical practitioner approved by the Society.

(5) Where the proceedings have been postponed or adjourned, the secretary shall, as soon as practicable, notify the parties of the date, time and venue of the postponed or resumed hearing.

Disposal of allegations without hearings

41.—(1) Where—

(a) an allegation has been referred to the Health or Disciplinary Committee;

(b) a principal hearing has not yet taken place in the proceedings; and

(c) the presenter for either the principal hearing or an interim order hearing that relates to the allegation considers that, on the evidence available, the hearing should not be held,

he shall inform the Investigating Committee of his opinion, forthwith, and of the reasons for his opinion.

(2) Upon receipt of the presenter’s opinion, the Investigating Committee shall consider the matter and may give a direction that the referral to the Health or Disciplinary Committee (either for a principal or an interim order hearing, or both) is rescinded.

(3) The Investigating Committee shall not rescind a referral for a principal hearing without first giving the maker of the relevant allegation (if any) a reasonable opportunity to comment on the proposed rescission.

Attendance of the public at hearings

42.—(1) Except as provided for in this rule, hearings of the Health and Disciplinary Committee shall be held in public.

(2) Any hearing before the Health Committee, or an interim order hearing before the Disciplinary Committee, shall be held in private, unless the Committee—

(a) having given the parties (where present), and any third party from whom the committee considers it appropriate to hear, an opportunity to make representations; and

(b) in the case of the Health Committee, having obtained the advice of the legal and clinical advisers,

is satisfied that the public interest in holding the hearing in public outweighs the interest of the registrant concerned or the third party in maintaining their privacy.

(3) A hearing before the Disciplinary Committee other than an interim order hearing may be held wholly or partly in private if the Committee—

(a) has given the parties (where present), and any third party from whom the Committee considers it appropriate to hear, an opportunity to make representations; and

(b) is satisfied that the interest of the registrant concerned or the third party in maintaining their privacy outweighs the public interest in holding the hearing, or the part of the hearing, in public.

(4) The Health or Disciplinary Committee may exclude from the whole or part of any hearing any person whose conduct, in its opinion, has disrupted or is likely to disrupt the proceedings.

Representation

43.—(1) The presenter shall be a person who is—

(a) a barrister, advocate or solicitor who satisfies the requirements of article 59(2)(c)(i) or (ii) of the Order; or

(b) an employee of the Society,

or both.

(2) The party other than the Society may be represented by a person who is—

(a) a barrister, advocate or solicitor who satisfies the requirements of article 59(2)(c)(i) or (ii) of the Order; or

(b) a representative from his or its defence organisation or his trade union,

or both.

(3) Where the party other than the Society is not represented, he or it may be accompanied and advised by a supporter, but the supporter—

(a) shall not be—

(i) a member of the Council of the Society or of one of its statutory committees,

(ii) an employee of the Society, or

(iii) a witness at the hearing; and

(b) shall only be entitled to address the committee with the permission of the chair.

Amendment of the particulars of the allegation at principal hearings

44.—(1) At a principal hearing, at any stage before making its findings of fact, the Health or Disciplinary Committee may of its own motion or following an application of one of the parties, amend the particulars of the allegation set out in the Notice of Hearing, unless it is of the view that the required amendment would prejudice the fairness of the proceedings.

(2) Before making any amendment under paragraph (1), the Committee shall consider—

(a) any representations from the parties (where present); and

(b) in the case of the Health Committee, the advice of the legal adviser.

Burden and standard of proof

45.—(1) Where facts at a principal hearing are in dispute, the burden of proving the facts shall rest on the Society.

(2) At a restoration hearing, the Disciplinary Committee shall only grant the application if the applicant has proved that he is entitled to be registered.

(3) Where facts are in dispute, the Health or Disciplinary Committee shall consider whether they have been established in accordance with the civil standard of proof.

Witness evidence

46.—(1) Persons giving oral evidence at a hearing (referred to in these Rules as “witnesses”, and which includes an applicant or registrant concerned giving oral evidence) shall be required to take an oath, or to affirm, before giving their oral evidence.

(2) The Society may not compel the applicant or registrant concerned to be a witness.

(3) A party may not call a person to be a witness unless that party has provided to the other party a written statement of evidence provided by the witness (which meets the requirements of rule 30) at least 7 days before the hearing, unless the chair determines otherwise.

(4) The Committee may, upon the application of the party calling the witness, direct that any details which may identify that witness shall not be revealed in public.

(5) Witnesses—

(a) shall first be examined by the party calling them;

(b) may be cross examined;

(c) may then be re-examined by the party calling them;

(d) may then be questioned by the Committee through the chair, and with the leave of the chair, by a clinical or specialist adviser.

(6) The parties may then question the witnesses on matters arising out of the Committee’s questions, with the party calling the witness being given the last opportunity to do so (as between the parties).

(7) Any further questioning of witnesses shall be at the discretion of the chair.

(8) Except for expert witnesses and the applicant or registrant concerned, witnesses shall not be allowed to attend the proceedings until after they have completed giving their evidence and been formally released by the chair.

Vulnerable witnesses at hearings

47.—(1) In proceedings before the Health or Disciplinary Committee, the following may, if the quality of their evidence is otherwise likely to be adversely affected, be treated as vulnerable witnesses—

(a) any witness under the age of 18;

(b) any witness with a mental disorder (that is, mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind);

(c) any witness who is significantly impaired in relation to intelligence or social functioning;

(d) any witness with physical disabilities who requires assistance to give evidence;

(e) any witness, where an allegation against an applicant or registrant concerned is of a sexual nature and the witness was the alleged victim; or

(f) any witness who complains of intimidation.

(2) Upon—

(a) hearing representations from the parties; and

(b) in the case of the Health Committee, after seeking the advice of the legal adviser,

the Health or Disciplinary Committee may adopt such measures as it considers necessary to enable it to receive evidence from a vulnerable witness.

(3) Measures adopted by the Health or Disciplinary Committee may include, but shall not be limited to—

(a) use of video links; and

(b) subject to paragraph (4), use of pre-recorded evidence as the evidence-in-chief of a witness, provided always that the witness is available at the hearing for cross-examination and questioning;

(c) use of interpreters (including signers and translators).

(4) Where—

(a) there is an allegation against an applicant or registrant concerned of a sexual nature;

(b) a witness is the alleged victim; and

(c) the applicant or registrant concerned is not represented,

he shall not be allowed to cross-examine the witness directly in person.

(5) In the circumstances set out in paragraph (4), any questioning of the witness shall be undertaken by such person as the Health or Disciplinary Committee considers appropriate.

Costs of the hearing

48.—(1) Where a principal, review or restoration hearing is to be held, the parties shall serve on each other, and on the secretary to the relevant Committee, a schedule of costs or expenses relating to the hearing no less than 24 hours before the date of the hearing.

(2) After announcing the Committee’s decision, the chair may invite representations as to whether costs or expenses should be assessed against either party.

(3) After hearing any representations from the parties, the relevant Committee may, if it thinks fit and having regard to the party’s ability to pay, order that a party pay by a specified date all or part of the costs or expenses relating to the hearing incurred by the other party.

(4) Where the relevant Committee orders a party to pay costs or expenses, the chair may—

(a) summarily assess the costs or expenses to be paid; or

(b) require the parties either to agree the figure for the costs or expenses to be awarded or to submit to taxation before a person appointed by the secretary.

(5) Where a person is appointed by the secretary in accordance with paragraph (4)(b), if one of the parties has provided an estimate of costs or expenses that is above the final figure arrived at by the person appointed, that party shall pay the costs of the taxation.

Notes and transcripts of hearings

49.—(1) Subject to paragraph (3), the Society shall arrange for all hearings to be recorded in writing or electronic form.

(2) Any party to the proceedings shall, on application to the Society and on payment of any fee determined by the Society under article 63(1) of the Order, be furnished with a transcript of the record of any part of the hearing at which he was entitled to be present.

(3) The private deliberations of the Committee shall not be recorded.