Disclosure of evidence against chiropractors by the GCC. Not good enough according to the High Court.

February 1, 2006
By

Since getting involved with the chiropractic profession in 1990, I have been surprised at the number of incidences I have witnessed where disregard for the rights of students and chiropractors have prevailed. What has amazed me even more is the total apathy the profession has when other peoples rights are not respected. Everybody is entitled to a fair hearing with full disclosure of evidence against them.

Two years ago I discovered that the BCA does not have to reveal all the evidence being presented against a BCA member at a closed disciplinary hearing. “The association is not subject to the Human Rights act because it is a members club”(BCA legal advisor at the 2005 AGM). On the other hand the GCC being a statutory body, is very much answerable to the Human Rights Act.

The GCC announced in the “Fitness to practice Report 2005” (page 16) how Warren Gage appealed the decision of the PCC. The high court dismissed Dr Gages’s appeal on all eight counts including the contentions that the chair should have rescued herself because of bias and that the penalty of suspension was too severe. The GCC Report went on to tell us that "the PCC was fortunate to have such a distinguished and well qualified Chair" as Linda Stone OBE.

However what they fail to mention is that the GCC investigating committee (IC) had been wrong not to disclose its experts report, which was being used as evidence against Dr Gage. This was a breach of his human rights. The fact the IC decision would not have affected the outcome of the Gage hearing is irrelevant if we talk about natural justice. Has this happened before in other cases?

The fact is the people who were sitting on the PCC thought that there was no duty on the investigating committee to disclose their Report , nor did the IC. This is worrying especially when I consider it in the context of the case I was involved in as an expert and the missleading Report I have talked about in other forums. Kangaroo and Court were words the chiropractors barrister uttered frequently in this case.

What else are members of the PCC unaware of. What kind of training are they receiving. We only know that the IC did not always disclose evidence because Warren Gage appealed the GCC decision which has resulted in the investigating committee changing its practice. Remember even though Dr Gage lost all 8 grounds of his appeal the GCC was not awarded 100% costs. In his final words on the judgment which can be seen in its entirety on the GCC website

MR. JUSTICE JACKSON said: "In my judgment there must be some adjustment of the costs order in this case to reflect the fact that the victory won by the General Chiropractic Council is, from one point of view, a Pyrrhic victory. In my judgment, the proper order for costs is that Dr. Gage should pay 80 per cent of the General Chiropractic Council’s costs. This order reflects the fact that Dr. Gage has lost on all the issues in the appeal but has nevertheless established that he should not serve any period of suspension".

Part 4: The effect of failing to disclose Dr. Brown’s report (An extract from Mr Justice Jackson’s ruling )

20. "As previously stated, Dr. Brown’s report was not disclosed to Dr. Gage during the investigation stage of the disciplinary process. The panel of the PCC considered this matter on Day 2 of the hearing. The panel refused to stay or dismiss the proceedings on this ground for two reasons. They were: (1) There was no duty on the investigating committee to disclose Dr. Brown’s report to Dr. Gage. (2) Alternatively, no harm was caused by the non-disclosure. It was still possible to have a fair trial of the allegations".

21. "I must address these two aspects of the matter separately. Let me consider first whether the investigating committee had a duty of disclosure. Miss Foster (for GCC) submitted, and I accept, that Dr. Brown’s report was not "a statement of evidence" within the meaning of rule 4.1 of the Investigation Rules.

That rule simply enables the investigating committee to gather relevant factual information before serving an initial notification under section 20(9)(a) of the 1994 Act. In those circumstances what rule does apply to the obtaining of Dr. Brown’s report? Miss Foster submitted that the investigating committee’s power to obtain an expert report either arose under rule 5.2 or alternatively was implied by the investigation rules generally.

In my judgment the former submission is correct. Rule 5.2 must be read broadly so as to encompass the power to obtain an expert report. I cannot however accept the next stage of Miss Foster’s argument which is that rule 5.2 confers a power to obtain expert evidence without disclosing it to the person under investigation. On this issue I prefer and accept the submission of Mr Burton. The power to obtain expert evidence which arises under rule 5.2 must denote expert evidence which is disclosed to the person under investigation.

A silver thread which runs through the investigation rules is that any significant evidence which the Committee receives must be copied to the chiropractor so that he or she may comment (see rule 4.2, rule 4.5 and rule 4.6). Accordingly in my judgment the Panel were wrong to rule as they did at pages 25 and 26 of Day 2 that the Investigating Committee were under no duty to disclose Dr. Brown’s report. At this point I should place on record that the Investigating Committee had subsequently changed its practice. The Committee now always discloses the expert evidence to the chiropractic under investigation.

I commend the Investigating Committee for its present policy of openness which seems to me entirely proper and in accordance with the rules".

We hope that is the case. Mr Justice Jackson concluded on this ground of appeal that; "For the reasons set out above I hold that the Panel were wrong to find that Dr. Brown’s report need not be disclosed during the investigation stage. On the other hand, the Panel were right in their final conclusion that the disciplinary proceedings should not be stayed or dismissed on this basis. I hold that there was a procedural irregularity in this case, namely the failure to disclose Dr. Brown’s report during the investigation stage. On the other hand, for the reasons set out above I reject the suggestion that this was a serious procedural irregularity which makes the final decision of the panel unjust. Accordingly, in the result Dr. Gage’s first ground of appeal must be dismissed"

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