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This article is the latest in a series to consider the procedure
in the Care Standards Tribunal. It deals with three evidential
topics that frequently arise in practice:
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Disclosure of documents. Reference is made to the recent
decision of the President in Dr F Abu-Mahfouz v CHAI [No.2]
[2004] 277 EA, The London Cosmetic Laser Centre Ltd v CHAI
[No.2] [2004] 278 EA.
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Expert evidence.
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Exclusion of evidence. Reference is made to the recent
decisions in Mahfouz v CHAI (see above), Gibson v CSCI
[2004] 265 EA & [2004] 266 EA, Bhatnagar v CSCI
[2002] 0360, 0361 & 0362 EA and Park Manor Nursing and
Residential Care Home v North Cheshire Health Authority/National
Care Standards Commission RHT Decision 457 (2004). (The
author appeared as counsel for the appellants or the respondents
in each of these cases).
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All references in this article to ‘the regulations’ or to a
particular regulation are, save where the contrary is stated,
references to the Care Standards Tribunal Regulations 2002 as
amended.
Disclosure of documents and other material
Disclosure of documents and other material by
parties to the CST appeal
Introduction
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Regulations 6(2)(a) and regulation 12 set out the rules
concerning disclosure by the parties of documents and other
material. Unfortunately, regulations 6 and 12 are not drafted as
clearly as they might have been.
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For example, regulation 6(2)(a) allows the President or
nominated chairman to direct the parties to disclose to the
Tribunal (and, if appropriate, to each other) documents on
which they intend to rely. Regulation 12(1)(a), on the other
hand, allows him to direct the parties to send to the Tribunal any
document or other material which he considers may assist the
Tribunal in determining the case. The ‘test’ for
disclosure is different in each case.
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Similarly, if the purpose of regulation 12(1) is to permit an
application similar to an application for specific disclosure
under the CPR, it is hard to see why the power under regulation
12(1)(a) to direct a party to send a document to the Tribunal
applies only to documents which may assist the Tribunal in
determining the case, whereas the power under regulation 12(1)(b)
to allow a party to inspect a document in the power of another
party is not expressly so limited.
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Fortunately, the President’s recent decision in
Dr F Abu-Mahfouz
v CHAI [No.2][2004] 277 EA, The London Cosmetic Laser
Centre Ltd v CHAI [No.2] [2004] 278 EA provides helpful
guidance on the meaning of regulations 6 and 12 and their
relationship to each other. In paragraphs 15 to 17 of the Decision
the President says:
"15. Disclosure of information and documents
is governed by Regulations 6, 12 and 14, in particular, of the
Tribunal Regulations. These are Convention compliant.
16. Secondly, disclosure in my view is required
in order to provide a ‘fair’ hearing for both sides. Equality of
arms is an important consideration, and one purpose behind the
disclosure provisions is to ensure that this equality is achieved in
so far as this is possible.
17. The usual disclosure arrangements are
established at the preliminary hearing held in accordance with
Regulation 6. I agree with the point made by Mr. N Grant of the
Respondent’s Solicitors, who at paragraph 53 of his witness
statement states: ‘Where disclosure in accordance with regulation
6(2)(a) has taken place and a party seeks disclosure in terms that
are wider than the usual terms set by Reg 6(2)(a), the onus is on
the party seeking disclosure to show that the documents may assist
the Tribunal in determining the case…A party seeking [such
disclosure] will obviously have to show that the documents are
relevant to the issues in the proceedings. Such an approach would
accord with the principle of proportionality since it would enable
the Tribunal to ensure that time and costs are not incurred
unnecessarily’."
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In the light of the President’s decision
Mahfouz the
position therefore appears to be as follows.
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At the preliminary stage, unless one or both the parties seeks
a different order, the President or nominated chairman will give
a direction under regulation 6(2)(a) for the parties to disclose
documents etc. on which they are intending to rely. Disclosure
under regulation 6(2)(a) can perhaps be termed ‘ordinary
disclosure’.
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Where at the preliminary or any later stage one or both of the
parties seeks a direction for disclosure, which goes beyond the
terms of regulation 6(2)(a), the power to order disclosure
derives from regulation 12(1) and the onus is on the party
seeking the direction to show that the documents in question may
assist the Tribunal in determining the case. It will be
necessary but not, it seems, sufficient for the party to show
that the documents are relevant to the issues in the case.
Disclosure under regulation 12(1) can perhaps be described as
‘specific disclosure’.
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In general terms, therefore, the CST regulations mirror the
two-stage disclosure procedure for standard disclosure and
specific disclosure under CPR 31.5 and 31.12.
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That said, it is interesting to note that Section 3 of the
standard "Further Information Forms" used in the CST
(see, for example, CST Regulations Schedule 1 paragraph 5) prompts
the parties to ask the President or nominated Chairman for a
direction "To direct the [other party] to list an disclose relevant documents in his possession, giving me the
opportunity to inspect them". Where the President or
nominated Chairman gives a direction to the parties to disclose relevant
documents, it is suggested that such a direction will
encompass both documents that help the party giving disclosure and
documents that help the other side. In other words, the direction
will go beyond the first stage of disclosure envisaged by
regulation 6(2)(a) and more closely resemble a direction given
under regulation 12(1). This may not matter greatly, since the
standard forms also prompt the parties to give reasons why they
seek an order in these terms. However, it is suggested that where
a nominated Chairman is considering making an order for disclosure
of ‘relevant’ documents at the preliminary stage, he should
consider whether adequate reasons have been given for such an
order.
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The provisions of regulation 6(2)(a) and regulation 12(1) will
now be considered in more detail.
Regulation 6(2)(a): ‘ordinary disclosure’.
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Regulation 6(2)(a) provides that at the preliminary hearing, or
if no preliminary hearing is to be held, within the time stated in
regulation 6(2)(a), the President or the nominated chairman shall
give directions as to the dates by which any document, witness
statement or other material upon which any party is intending to
rely shall be sent to the Tribunal, and, if the President or the
nominated chairman considers it appropriate, to the other party.
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The following points should be noted.
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First, the regulation encompasses witness statements and other
material as well as documents.
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Second, the terms of the regulation are couched in mandatory
terms. The President or the nominated chairman shall give
directions as to the dates by which the parties are to send to the
Tribunal any documents, witness statements or other material which
they are intending to rely on. The President or nominated chairman
shall also give directions to each party to send the same
documents to the other party if the President or
nominated chairman considers it appropriate. However, the
power to give a direction must include a power to give no
direction at all, should it be appropriate to take this course for
whatever reason. Similarly, regulation 6(2)(b) confers a broad
discretion on the President or nominated chairman to ‘give any
other direction in the exercise of his powers under this Part
which he considers appropriate’.
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It is difficult to conceive of a situation where it will be
considered appropriate for the parties not to serve the
documents, witness statements and other material on which they
intend to rely on the other party to the proceedings. The
pre-trial exchange of witness statements, documents etc is a
feature of modern case management. Where the parties intend to
rely on such statements, documents etc at the hearing, an exchange
of the material prior to the hearing will prevent either party
being taken by surprise and will facilitate the effective use of
time at the hearing.
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Third, regulation 6(2)(a) requires President or nominated
chairman to direct the parties to send to the Tribunal (and,
appropriate, the other parties) the documents upon which they
are intending to rely.
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On the face of it, a direction in such terms will impose on the
parties a more limited obligation than the one imposed by an order
made in civil proceedings. An order to give disclosure in civil
proceeding is an order to give standard disclosure unless the
court otherwise directs: CPR 31.5. Standard disclosure requires a
party to disclose the documents on which he relies and the
documents which (i) adversely affect his own case, (ii) adversely
affect another party’s case or (iii) support another party’s
case.
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Where the parties are required by an order made in the CST to
disclose only the documents upon which they intend to rely, it
should occasion little surprise if they are tempted not to reveal
documents which adversely affect their own case since to fail to
do so will not obviously offend the terms of an order for
disclosure made under regulation 6(2)(a). However, the following
points should be noted:
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A party’s legal representative is professionally obliged not
to mislead the Tribunal. Where a legal representative knows of
the existence of documents, which have not been disclosed but
which clearly contradict the case the party has instructed the
legal representative to advance, it will usually be impossible
for the legal representative to comply with his client’s
instructions without failing to comply with his overriding duty
not to mislead the Tribunal.
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A respondent regulator is under a duty to present the
respondent’s case fairly and responsibly. In The Secretary
of State for Health v Prospect Care Services Ltd and Hyland
[2001] EWHC 164 (Admin) [72] Scott Baker J, having noted the
potentially devastating effect of a decision to cancel, said
"The power to cancel registration is therefore, it seems
to me, matched by a great responsibility to see that it is not
exercised unjustifiably". In Strickland v Herts CC
[2003] EWHC 287 (QB) [8] Eady J. noted with approval the
recommendations made by the Tribunal which heard the
cancellation appeal: "Another significant recommendation
was that the respondents should make every effort to present the
case to the Tribunal in a balanced manner (ie they should not
restrict evidence to emphasising the negative aspects, but ‘should
include positive aspects as well’. Respondents should not
consider that their role is limited to doing everything they can
to ensure that the cancellation decision is upheld. ‘If they
adopt this approach they are prima facie acting unfairly’."
Whatever the precise terms are of the order for disclosure the
Tribunal makes, it may well be that a respondent regulator who
fails to disclose documents that are adverse to its case or
which advance the applicant’s case will infringe the guidance
given in these two cases.
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As noted above, if the parties follow the ‘prompt’ in the
"Further Information" Forms used in the CST and ask
the President or nominated Chairman to make a direction for
disclosure of relevant documents and if he makes such a
direction, the scope of the direction will be wider than a
direction to disclosure documents upon which a party intends to
rely.
Regulation 12(1): ‘specific disclosure’
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Regulation 12(1) provides as follows:
(1) Subject to paragraphs (3) to (5), the
President or the nominated chairman may give directions-
(a) requiring a party to send to the Secretary
any document or other material which he considers may assist the
Tribunal in determining the case and which that party is able to
send, and the Secretary shall take such steps as the President or
nominated chairman may direct, to supply copies of any information
or document obtained under this paragraph to the other party;
(b) granting to a party the right to inspect and
take copies of any document or other material which it is in the
power of the other party to disclose, and appointing the date, time
and place at which any such inspection and copying is to be done.
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Prior to the decision in
Mahfouz (see above), the
interrelationship between disclosure under regulation 12(1) and
disclosure under regulation 6(2)(a) was unclear. In the light of Mahfouz
it now seems that disclosure under regulation 12(1) is akin to ‘specific
disclosure’ under the CPR.
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However,
Mahfouz does not expressly consider the internal
interrelationship between regulations 12(1)(a) and 12(1)(b).
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12(1)(a) seems to allow the President or nominated chairman to
take the initiative and to require the parties to provide to the
Tribunal any document or other material which he (the President or
nominated chairman) considers may assist the Tribunal in
determining the case.
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Regulation 12(1)(b), on the other hand, seems to provide for the
President or nominated chairman to make an order (presumably
following an application by one of the parties) allowing that
party to inspect and copy any document ‘which it is in the power
of the other party to disclose’.
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However, the suggestion made above that regulation 12(1)(a)
appears suited to a direction made on the initiative of the
President or nominated chairman whilst regulation 12(1)(b) appears
to intended to respond to an application made by one of the
parties is not necessarily supported by the terms of regulation 12
as a whole. Regulation 12(1) makes no reference at all to an
application by one of the parties whereas regulation 12(2) (which
is considered further below) expressly states that a direction may
be made ‘on the application of either party’. However, given
the less than clear drafting of regulation 12 as a whole, it is
suggested that such nuances are unlikely to yield any reliable
clues to the true meaning of the regulation.
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The language of regulation 12(1) presents other difficulties.
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First, the discretion to make an order under regulation 12(1)(b)
for inspection and copying of a document is not limited to the
inspection and copying of documents which another party has been
ordered to disclose pursuant to a direction given under regulation
6(2)(a) or under regulation 12(1)(a). On the contrary, it
expressly extends to all documents which the other party has the
power to disclose, whether or not he has been ordered to disclose
them. The result is that regulation 12(1)(b) is not limited to
inspection and copying of documents, as it first seems to be, but
in fact gives the President or nominated chairman an additional
power to order disclosure.
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Second, unlike regulation 12(1)(a), in the case of regulation
12(1)(b) the draftsman omitted expressly to state what criteria
the President or nominated chairman should use to decide whether
or not to make a direction under 12(1)(b).
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In
Mahfouz the President, whilst not alluding
specifically to the apparent distinctions between regulations
12(1)(a) and 12(1)(b) or the difficulties referred to above,
appears effectively to have cut the Gordian knot by treating any
application for additional disclosure over and above that required
by a direction given under regulation 6(2)(a) as standing on the
same footing under whichever limb of regulation 12(1) the
application is made.
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It is suggested that this must be the right approach. If a
particular document is unlikely to assist the Tribunal to
determine the case and is of no relevance to the issues in the
case, it is difficult to see why the President or nominated
chairman should exercise his discretion to make an order under
regulation 12(1)(b). The same criteria should apply to
applications under either limb of regulation 12(1).
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When considering what documents are likely to assist the
Tribunal to determine the case and/or are likely to be relevant,
it is important to remember that an appeal to the Care Standards
Tribunal is a merits appeal, not a judicial review: Appiah-Anane
v NCSC [2002] 96 NC and the Mahfouz case (above).
Appellants frequently complain about the fairness of the procedure
the regulator adopted when deciding to cancel the registration. It
is suggested that unless the procedure adopted is alleged to
impact on the merits of the case, extensive disclosure of
documents relating to the procedure will rarely assist the
Tribunal for the simple reason that the Tribunal is concerned with
the merits of the decision, not the procedure the regulator
followed when reaching it.
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Before leaving regulation 12, it is important to note that the
power of the President or nominated chairman to make an order
under regulation 12(1) is limited by the restrictions on that
power contained in paragraphs 12(3)-(5). Paragraph (3) repeats the
rule that disclosed documents can only be used for the purpose of
the proceedings in which they are disclosed. Paragraph (4)
preserves, for example, legal professional privilege. Paragraph
(5) requires the President or nominated chairman to take into
account the need to protect information relating to intimate
personal or financial circumstances or which is commercially
sensitive or which was communicated or obtained in confidence. It
is implicit that these factors may lead the President or nominated
chairman to decline to make an order under regulation 12(1) in
respect of a document or material which he would otherwise order
to be disclosed or provided.
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In addition to the provisions concerning disclosure contained in
regulations 6 and 12, regulation 11 allows the President or
nominated chairman to make directions about the supply by the
parties to the Tribunal of copies of the documents the President
or nominated chairman has ordered them to disclose.
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Where a party fails to comply with an order for disclosure, the
Tribunal has the power to impose sanctions.
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First, regulation 14(3)(b) allows the Tribunal to exclude from
consideration any document or evidence, which the party has failed
to submit in accordance with a direction to do so made by the
President or nominated chairman.
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Second, regulation 10 allows the President or nominated chairman
to make an ‘unless order’. Where the party fails to comply
with the terms of the ‘unless order’, regulation 10 allows the
President to determine the case in favour of the other party.
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The Tribunal must exercise its powers fairly if it is to comply
with ECHR Article 6. Where a party fails to comply with an order
for disclosure and subsequently fails to comply with an ‘unless
order’, it is to be expected that the Tribunal will adopt the
approach the courts take in similar situations and that it will
exclude the evidence under regulation 14(3)(b) rather than
determine the case against the party under regulation 10. The
latter course will only be appropriate, it is suggested, where the
party’s failure to disclose the documents etc. is so serious
that without them it impossible for the Tribunal to determine the
appeal fairly between the parties.
Disclosure of documents and other material by
non-parties
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Regulation 12(2) provides:
(2) Subject to paragraphs (3) to (5), the
President or nominated chairman may give a direction on the
application of either party, requiring a person who is not a party
to the proceedings to disclose any document or other material to the
party making the application, if he is satisfied that-
(a) the documents or other material sought are
likely to support the applicant’s case or adversely affect the
case of the other party;
(b) it is within the power of the person subject
to the direction to disclose any document or other material; and
(c) disclosure is necessary for the fair
determination of the case.
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The conditions precedent to the making of an order for
disclosure against a non-party under regulation 12(2) reflect
those contained in CPR 31.17, which confers a similar power on the
civil courts.
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Documents ‘are likely to’ support the applicant’s case or
adversely affect the case of the other party for the purposes of
regulation 12(2)(a) if they ‘may well’ do so – it is not
necessary for the applicant to show that it is ‘more probable
than not’ that they will do so: Three Rivers District Council
v Bank of England (No.4) [2003] 1 WLR 210 and Black and
others v Sumitomo Corp and Others [2002] 1 WLR 1562, CA.
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Before making an application for disclosure against a non-party,
the applicant should first invite the non-party to provide the
documents voluntarily and then warn him before making an
application. Where the non-party wishes to oppose the application,
he must have the right to appear and be heard. If he does so and
successfully opposes application, it seems the Tribunal will have
no power to order the applicant to pay his costs, however
unreasonable it was to make the application, because the Tribunal’s
power to make orders as to costs appears clearly to be limited to
orders in favour of one party to the appeal against the other: see
regulation 24.
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As with regulation 12(1), the power to make an order under
regulation 12(2) is subject to the considerations set out in
paragraphs (3) to (5) above. In particular, paragraph (5) reflects
the fact that the making of an order against a non-party may
engage ECHR Article 8.
EXPERT EVIDENCE
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Regulation 13 deals with the topic of expert evidence.
Confusingly, however, the draftsman of the regulations covered the
topic in regulation 13 in part only.
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It is unnecessary to set out regulation 13 in full. In summary,
it allows the President or the nominated chairman to appoint an
appropriate expert to assist the Tribunal and it provides for
copies of the report to be sent to the parties and for the expert
to attend the hearing and give evidence if appropriate.
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Regulation 13 is silent on the power of the parties to instruct
their own experts and to call them as witnesses. Neither
regulation 13 nor any of the other regulations contains provisions
equivalent to those contained in CPR Part 35, which control the
calling of expert evidence in the civil courts.
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This is a strange omission. Appeals to the CST may concern
allegations of inadequate nursing care or medical treatment akin
to the allegations that might be found in a professional
negligence action in the civil courts. In the civil courts such
allegations are inevitably resolved with the assistance of expert
evidence and CPR Part 35 makes detailed provisions for it.
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It is unlikely that the explanation for the omission is that the
draftsman intended regulation 13 to stand as a comprehensive code
for the introduction of expert evidence. It was the practice in
the Registered Homes Tribunal for parties to call their own
experts. There is nothing in the regulations to indicate the
draftsman intended that the practice should be different in the
CST and as a matter of fact the practice has continued in the CST.
More importantly, if the effect of the regulations was absolutely
to deny the parties the opportunity to call their own expert
evidence even where it is clearly appropriate and necessary for
them to do so in order to dispose of the appeal fairly, the
regulations would infringe ECHR Article 6. That cannot have been
the intention of the draftsman.
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It is suggested that the Tribunal’s power to allow the parties
to call their own expert evidence can be found in the regulations
which deal with witness evidence, for example, regulations 6(2)(a)
and 14. The language of the regulations is wide enough to embrace
all witnesses, whether they give factual evidence or opinion
evidence.
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Fairness and commonsense dictate that where the parties intend
to call expert evidence, they should make this clear to each other
and the Tribunal as soon as possible. The Tribunal will then be
able to consider what directions to make. In many, if not all
cases, it may be appropriate for the Tribunal to give directions
similar to those in the CPR: directions relating to mutual
exchange of reports, meetings of experts, joint statements of
facts that are agreed or not agreed etc.
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A party who stays silent about his intention to call an expert
and who without any forewarning simply serves an expert report
along with his other witness statements is unlikely to find favour
with the Tribunal. At best such action is likely to lead to an
adjournment of any hearing date with the risk of an adverse costs
order on the basis that the party’s conduct was unreasonable. At
worst the Tribunal may exercise its power under regulation 14(3)
(see below) to exclude the evidence altogether. In a number of
civil cases, the Court of Appeal has acknowledged that where the
late admission of expert evidence is likely to delay a hearing,
the court or tribunal will be entitled to exclude it: Calden v
Dr. Nunn & Partners [2003] EWCA Civ 200; Beck v The MOD
[2003] EWCA Civ 1043.
EXCLUSION OF EVIDENCE
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The Tribunal’s power to exclude evidence is to be found in
regulation 14(3). Regulation 14(3) reads as follows:
(3) The President or the nominated chairman
(before the hearing or, if the case is to be determined without an
oral hearing, before the case is determined) or the Tribunal may
direct that a document or the evidence of any witness other than the
applicant shall be excluded from consideration because-
(a) it would be unfair in all the circumstances
to consider it;
(b) the party wishing to rely on the document or
evidence has failed to submit the document, or witness statement
containing it, in compliance with any direction; or
(c) it would not assist the Tribunal in
determining the case.
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Regulation 14(4) provides that instead of excluding evidence
under regulation 14, the President or the nominated chairman or
the Tribunal may permit it to be considered on such terms as he or
it thinks fit, including, subject to regulation 24, the making of
a costs order.
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The first point to note is that the title of regulation 14 –
‘Evidence of witnesses’ – is misleading. Regulation 14(3)
applies both to documents and to the evidence of witnesses.
However, where it would be either unfair for the Tribunal to
consider a document or the document would not assist the Tribunal
in determining the case, the Tribunal is unlikely to order
disclosure in the first place. So far as documents are concerned,
therefore, regulations 14(3)(a) and (c) are likely to be used, if
at all, to exclude documents a party has produced itself.
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Second, so far as documents are concerned, regulation 14(3(b)
has been dealt with above in the section of the ‘Disclosure’
section of this article. Similar considerations will apply to the
exercise by the Tribunal of its powers under regulation 14(3)(b)
in the case of other evidence.
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Third, it should be noted that regulation 14(3) confers a
similar power on both (a) the President and the nominated chairman
and (b) the Tribunal. There appears to be nothing to stop a party,
who makes an unsuccessful application to the President or chairman
before the substantive hearing, from renewing the application
before the full Tribunal at the substantive hearing. In practice,
unless there is some new material to support the renewed
application or some other change in circumstances, the renewed
application is unlikely to fare any better before the full
Tribunal.
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The remaining paragraphs in this section of the article concern
the Tribunal’s powers under regulations 14(3)(a) and (c). The
scope and exercise of the powers were recently considered by the
President in Mahfouz (see above).
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The
Mahfouz case concerned appeals by Dr. Mahfouz and his
company against decisions by the Healthcare Commission to refuse
them registration under the Care Standards Act 2000 to carry out
laser cosmetic surgery. Before the substantive hearing of the
appeals, the Appellants applied to the President for a direction
excluding two categories of evidence: first, the evidence of eight
former patients who complained about the quality of care they
received; second, the evidence of a BBC undercover reporter, Paul
Kenyon, who visited Dr. Mahfouz’s clinic on the pretext that he
was interested in receiving treatment and who secretly filmed what
occurred.
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The Appellants argued among other things that the evidence of
the eight former patients raised clinical negligence issues and
that the Tribunal was an imperfect forum for these issues (see the
Decision paragraph 4). The President’s decision can be found at
paragraphs 9 to 11:
"9. The Regulations provide the Tribunal
with a very broad discretion that must of course be exercised in
accordance with the principles as set down by Article 6 of the
Convention. I drew Counsel’s attention to the European Court of
Human Rights case of Perna v Italy (2004) 39 EHRR 563. This
is a unanimous decision of the Grand Chamber, and in consequence it
must carry with it come considerable authority. The Court said: ‘The
admissibility of evidence is primarily a matter for regulation by
national law. The European Court’s task is not to give a ruling as
to whether statements of witnesses were properly admitted as
evidence, but to ascertain whether the proceedings as a whole,
including the way in which the evidence was taken, were fair’.
10. It is acknowledged by both Counsel that
Regulation 14 is drafted in conformity with the European Convention.
11. The hearing before the Tribunal is an appeal
on merits, and matters subsequent to the decision can be placed
before the Tribunal. Client care is an issue what will figure in the
decision making process of the Tribunal and I have no doubt
whatsoever that the evidence of the eight former patients is
relevant, in that it will assist the Tribunal in determining the
case. What weight is attached to this evidence is of course a matter
for the Tribunal, helped as it may be by expert evidence from both
sides. It is not unfair in all the circumstances to [consider]
it."
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A number of points may be made.
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First, whether the application to exclude is made under
regulation 14(3)(a) or (c), it will be important for the person
hearing the application to identify the true scope of the issues
raised in the appeal. The starting point should be the reasons
given in their notices by the appellant and the respondent for
bringing or opposing the appeal. Given that these are often
couched in rather general terms, it will usually be necessary to
extend the scope of the enquiry by seeking to identify with the
parties what the real issues are.
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Second, the Care Standards Tribunal (and the Registered Homes
Tribunal before it) has remarked on more than one occasion that
the most important witnesses for the regulator are often the
appellants themselves. In many cases, it is only when the
appellants give their evidence and are cross examined and then
questioned by the tribunal members that the true picture emerges.
This is particularly so in ‘fitness’ appeals, when the answers
the appellants give are often eloquent testimony to their lack of
the necessary skills and experience. To exclude evidence at an
early stage on the grounds of relevance may inhibit the
effectiveness of a process in which the tribunal members are not
merely spectators but perform an important investigatory role.
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Third, considerations of ‘fairness’ apply to the regulator,
who represents the public interest, just as much as they apply to
the appellants. When considering whether it would be unfair to
consider evidence, the tribunal should have regard to and try to
strike a balance between the interests of both parties.
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As noted above, in
Mahfouz the Appellants also sought to
exclude the evidence of Paul Kenyon, the BBC undercover reporter.
In this they were successful. The application raised familiar
arguments under Articles 6 and 8 of the ECHR. In summary, the
Appellants argued that Mr. Kenyon obtained his recording in breach
of Article 8 and that it would infringe the Appellants’ Article
6 ‘fair trial’ rights if the Tribunal were to consider it. In
response the Respondent argued that there had been no breach of
Article 8 and, even if there had, it would not infringe Article 6
for the Tribunal to consider the evidence.
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The President found (Decision paragraphs 26 to 33) that there
had been a breach of Article 8. As far as Article 6 was concerned,
he held that the question he had to ask was whether the
introduction of the evidence would be ‘fair’. He decided that
it would not be. Mr. Kenyon was not a ‘real’ prospective
patient, and the Tribunal would be hearing from real patients. In
those circumstances Mr. Kenyon’s evidence did not add anything
to the body of evidence relating to ‘patient care’ issues.
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The exclusion of evidence has also been considered recently in
three other cases.
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Park Manor Nursing and Residential Care Home v North Cheshire
Health Authority/National Care Standards Commission RHT
Decision 457 (2004) was the last appeal heard by the Registered
Homes Tribunal. It concerned an appeal against an emergency order
obtained by North Cheshire Health Authority to close Park Manor.
NCHA relied in part on evidence about examinations of the
residential and nursing clients of the home carried out by two
nurses. The Appellants argued that the two nurses had failed to
obtain the real or informed consent of the clients before carrying
out the examinations and that the nurses were therefore in breach of
ECHR Article 8. They also argued that it would be ‘Article 6
unfair’ for the Tribunal to admit the evidence not least because
the surreptitious manner in which the evidence had been obtained
deprived the Appellants of an opportunity to instruct an expert of
their own to carry out similar examinations before the clients were
moved from the Home.
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The Tribunal rejected the application (see paragraphs 5.7 and
5.8 of the Decision) on the basis that the discretion conferred on
the Tribunal by Registered Homes Tribunals Regulations regulation
10(2) (which was in similar terms to regulation 22(1) of the CST
regulations) was broad enough to allow it to admit the evidence
even though it would be inadmissible in a court of law.
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It is respectfully suggested that the Tribunal’s decision
cannot be right. Neither regulation 10(2) of the RHT regulations
nor regulation 22(1) of the CST regulations gives the Tribunal the
power to receive or consider evidence where to do so would be
unfair for the purposes of ECHR Article 6. The Appellants in Park
Manor sought a judicial review of the Tribunal’s decision on
precisely this basis. However, the application was overtaken by
events. Before it could be heard, the Tribunal convened to hear
the substantive appeal, whereupon the nurses refused to give
evidence on the basis that they might incriminate themselves –
if they had not obtained consent, their examinations would have
been a battery. At this point, the respondent abandoned its
opposition to the appeal.
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In
Gibson v CSCI [2004] 265 & 266 EA the appellants
sought to introduce a detailed statistical analysis they had
carried out of the scores achieved by other homes in the area
against National Minimum Standards and a comparison of them with
the scores achieved by the appellants in their homes. The Tribunal
excluded the evidence on the grounds that it was irrelevant: what
the Tribunal was concerned with was the substantive evidence of
the quality of service provided by the appellants in their homes
and the Tribunal would not derive assistance from statistical
evidence about NMS scores achieved by other homes.
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Bhatnagar v CSCI [2002] 0360, 0361 & 0362 EA was the
last in a series of four appeals, of which the Park Manor
case (see above) was the first. It concerned an appeal by the
appellants against a decision to cancel their residential
registration in respect of Park Manor residential and nursing home
under Part I of the 1984 Act, their appeals in respect of the
cancellation of their nursing home registration under Part II of the
Act having already succeeded. CSCI sought to rely on evidence
concerning the allegedly poor quality of nursing care at the home.
The CST excluded the evidence on the ground that it was not relevant
to the issue of the Appellants’ registration under Part I of the
Act.
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It is suggested that these cases demonstrate that where a party
is able to demonstrate a clear case for the exclusion of a defined
category of evidence, the CST is quite prepared to exercise the
powers conferred on it by the regulations.
