FACTSHEET 2
Information for doctors
A tribunal’s powers to
draw adverse inferences
and to refuse to admit
evidence
All references in this factsheet to the rules
are to the General Medical Council (GMC)
Fitness to Practise Rules 2004, as amended.
We strongly recommend that you read
factsheet 1, Case management procedure
before reading this factsheet.
What does adverse inference
mean?
To draw an adverse inference means
that the tribunal may draw a negative
conclusion from a party’s failure to comply
with a rule or direction.
What does refusal to admit
evidence mean?
A refusal to admit evidence means
that the tribunal may refuse to receive
evidence (eg, witness statements, expert
reports or other documents) where the
party wishing to rely on that evidence has
failed to comply with a rule or direction
(see below).
Medical practitioners tribunal
When can a tribunal draw adverse
inferences or refuse to admit
evidence?
In certain rare circumstances, a medical
practitioners tribunal can under rule 16(A)
draw an adverse inference or refuse to
admit evidence that you or the GMC want
to rely on.
These powers are only available to a
medical practitioners tribunal:
●
considering a new allegations of
impaired fitness to practise in
accordance with rule 17 (new
hearings)
●
reviewing a practitioner’s fitness to
practise in accordance with rule 22
(review hearings)
●
considering a restoration application
in accordance with rule 24
(restoration hearing).
They are not available in interim orders or
non-compliance hearings.
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Factsheet 2 | A tribunal’s powers to draw adverse inferences and to refuse to admit evidence
Which rules and directions do I need
to comply with?
For the purposes of rule 16(A), a direction may
be either a rule 16 case management direction
or a substantive direction made by a tribunal
(such as a direction to undergo an assessment).
These directions are legally binding, which
means that you must comply with all directions
given to you, and the GMC must comply with all
directions given to it.
The key rules to consider depend on the type of
hearing you are attending.
●
Rules 15 and 17 set out the main provisions
applicable to new hearings.
●
Rules 20–22 set out the main provisions
applicable to review hearings.
●
Rules 23 and 24 set out the main provisions
applicable to restoration hearings.
●
Rules 16–16B and 28–42 set out provisions
that may apply to all three types of hearing.
You should take the time to read these rules
carefully, as they may help you understand the
procedure that will be followed in your case.
For example, rule 34 sets out what you need to
do with evidence you want to rely on.
Under the case management procedure (see
factsheet 1, Case management procedure), we
will give you and the GMC listings instructions,
which will tell you what is expected of you
in terms of compliance with the rules during
your preparation for the hearing. Sometimes a
pre-hearing meeting will also take place, chaired
by one of our legally qualified case managers,
who may set a timetable for the progress and
preparation of the case by giving you and the
GMC directions to follow.
The tribunal will receive a copy of the listings
instructions (and if a pre-hearing meeting has
taken place, they will also receive a copy of the
case manager’s directions). The tribunal will
expect you and the GMC to have complied
with the listings instructions or case manager’s
directions, unless there has been a material
change in circumstances.
If you or the GMC fail to comply, the tribunal
can:
●
draw adverse inferences
●
refuse to admit the evidence (where
the failure relates to the admissibility of
evidence)
●
award costs (see factsheet 3, A tribunal’s
power to make a cost award).
It is therefore in your best interests to make
sure that you comply with all of the rules and
directions given to you. Failure to do so could
have important consequences.
For more information on the potential
consequences of not complying with rules and
directions the Guidance for medical practitioners
tribunals on case management and exercising
powers under Rule 16(A) (adverse inferences,
refusal to admit evidence and awarding costs)
– see the Useful links section below. Fuller
information on what might constitute a failure to
comply is included in the guidance document.
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Factsheet 2 | A tribunal’s powers to draw adverse inferences and to refuse to admit evidence
When might an adverse inference be
drawn?
When might a tribunal refuse to admit
evidence?
An adverse inference can be drawn against a
party who has failed to comply with a rule or
direction by not giving evidence (for example,
witness statements, expert reports or other
documents). The tribunal will consider:
A tribunal can refuse to allow a party to rely on
evidence where that party has failed to comply
with a relevant rule or direction relating to the
production of that evidence. For example, if
you or the GMC deliberately fail to disclose
a witness statement by a relevant deadline
without good reason, the tribunal can refuse to
admit the evidence.
●
●
whether the failure to provide evidence has
left the tribunal unable to assess the quality
of that evidence or determine what it
means in the context of the case as a whole
whether the failure to provide evidence
was ill-motivated or made in bad faith,
or whether there is another reasonable
explanation for the failure.
Where the above criteria are met, the
tribunal may draw an adverse inference if it is
appropriate in all of the circumstances of the
case. Two examples of what might cause the
tribunal to draw an adverse inference and, in
italics, what the adverse inference might be, are
as follows.
●
If you fail to produce evidence in
accordance with a rule or a direction,
without reasonable excuse, the tribunal
may conclude that the evidence was not
produced because it would be unfavourable to
you.
●
If the GMC fails to comply with a direction
to produce evidence by a certain date, but
then gives this evidence at a later date and,
in the absence of an adequate explanation,
the evidence appears to have been altered,
the tribunal may conclude that the evidence,
before alteration, was unfavourable to the
GMC.
The tribunal will refuse to admit evidence only
where absolutely necessary. Factors that the
tribunal may consider when deciding on the
admissibility of evidence will include:
●
when the evidence was obtained
●
the relevance of the evidence to the issues
in the case
●
any reasonable excuse given for the failure
to produce the evidence in accordance with
the rule or direction
●
whether there is any other mechanism,
other than excluding the evidence, that
would allow the hearing to proceed fairly.
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Factsheet 2 | A tribunal’s powers to draw adverse inferences and to refuse to admit evidence
How do I apply for the tribunal to
draw an adverse inference or refuse to
admit evidence?
If you wish to apply for the tribunal to draw an
adverse inference or refuse to admit evidence,
you should inform the tribunal at the earliest
opportunity. When you receive notification
of an application, the tribunal will arrange
time during the hearing for the matter to be
addressed. You will be able to explain why
you think the tribunal should draw an adverse
inference or refuse to admit evidence. The
GMC will then have an opportunity to respond.
After careful consideration of the arguments,
the tribunal will announce its decision and give
full reasons for it.
Key points
●
You should comply with the rules and
directions made in your case to prevent any
application being made against you for the
tribunal to draw an adverse inference or to
refuse to admit evidence.
●
If you intend to make an application against
the GMC for the tribunal to draw an
adverse inference or to refuse to admit
evidence, remember to tell the tribunal at
the earliest opportunity.
Useful links
You can find more information in Guidance
for medical practitioners tribunals on case
management and exercising powers under Rule
16(A) (adverse inferences, refusal to admit
evidence and awarding costs), available at
www.mpts-uk.org/guidance.
Read the General Medical Council (Fitness to
Practise) Rules Order of Council 2004, as amended
at www.gmc-uk.org/ftprules.
To see the full range of factsheets – go
to www.mpts-uk.org/unrepdoctors or
pick up a copy from the MPTS hearing
centre.
Published December 2015
© 2015 General Medical Council
The GMC is a charity registered in England and Wales (1089278) and Scotland (SC037750)
Code: MPTS/F2-ATPDAIRAE/0416
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