Referral to a Hearing Committee

1. Referral to a Hearing Committee SGUL Officers Panels & Representatives Chairing Hearing Committees • Dr Robert Nagaj, IMBE • x5187 email: rnagaj@sgul.ac.uk

2. In this session: • The role of Presenting Officer, on behalf of SGUL • Preparing the SGUL case to present to a Hearing Committee • Committee membership • Role of the committee members • How to prepare for a Hearing Committee • What to expect on the day • Outcomes – sanctions, proportionality and justification of decision making

3. SGUL Presenting Officer: Role • PO vs IO • Review all evidence in a fair, objective and balanced manner • Prepare and write a coherent SGUL case • Review and/or add new relevant information that has come to light in the period between the IO concluding their investigation and the Hearing • Present SGUL case to the Committee • Assist the hearing committee in navigating through evidence • Question the student

4. SGUL Presenting Officer: Written Case Before you begin: The right mental attitude

5. Consider: • real situation • facts>guidelines/law • What has happened? • Why is it a problem? • Is there more than one issue? • process, guidelines, rules, law - means to an end • use guidelines to FORM your case/advice on the facts, not the facts as an excuse to form an opinion on the guidelines/law NOT:When does student conduct amount to dishonesty? BETTER:Does this student's act/statement amount to dishonesty? • Provide clear advice to the Committee • What will they need to make a decision? • Assist the Committee to make sense of the facts

6. SGUL Presenting Officer: Written Case The thinking process: preparation

7. Preparation • What are you asked to do? • What does the Committeeneed to decide on? (Primary question): FTP (?) Sanctions(?) • Absorb and organise the facts • Construct a framework • Consider implicit questions • Plan the outline • Keep reviewingthe case until it makes sense • Make a clear recommendation • Is my case balanced?

8. What’s the difference? FACTS VS OPINIONS FACTS VS ISSUES

9. FACTS lied on two occasions in professional setting assaulted a receptionist no remorse blamed the tutors online harassed another student five reports on being disruptive in teaching sessions multiple failure to answer or respond tocommunications Example ISSUES dishonesty aggressive, violent or threatening behaviour persistent inappropriate behaviour

10. Preparation • What are you asked to do? • What does the panel need to decide on? (Primary question): FTP (?) Sanctions(?) • Absorb and organise the facts • Construct a framework • Consider implicit questions • Plan the outline • Keep reviewingthe case until it makes sense • Make a clear recommendation • Is my case balanced?

11. Framework for writing • Guidelines, rules, law • list ALL relevant ones • group them into themes • each theme will constitute a separate issue • Use rules/regulations to organise your case • Identify questions that need to be answered • Identify gaps in evidence

12. Example framework: Negligence (Personal injury) • Did A owe B a duty of care? • Was A in breach of that duty? • Did B suffer injury/loss - if yes, what were they? • Were they caused by A's negligence? • Did B contribute to negligence? • Is the damage reasonably foreseeable? • Did B mitigate? • Can damage be quantified?

13. Example framework: Misconduct • Relevant examples of behaviour - evidence • Persistent, clear pattern • Did SGUL provide opportunity to get to know the guidelines • Impact of behaviour on patients (current or future)/ colleagues/profession • Third party or SGUL contribution, e.g. provocation • What has been done to correct student behaviour so far • Mitigation: personal circumstances, external pressures (unforeseeable and foreseeable)

14. Preparation • What are you asked to do? • What does the panel need to decide on? (Primary question): FTP (?) Sanctions(?) • Absorb and organise the facts OPEN MIND! • Construct a framework • Consider implicit questions • Plan the outline • Keep reviewingthe case until it makes sense • Make a clear recommendation • Is my case balanced?

15. Plan the outline • Skeleton plan • Unity which you understand and can find your way around it and assist the panel • Shape and structure • Who is the student - relevant details and background • What happened (chronology vs importance) • SGUL case: what is your case & what do you want the Committee to decide • Relevant guidance extracts • Sanctions: discuss each in turn • Name and date • Identify the gaps: either request more info, or, if not practicable, be aware where the gaps are

16. Preparation • What are you asked to do? • What does the Committeeneed to decide on? (Primary question): FTP (?) Sanctions(?) • Absorb and organise the facts OPEN MIND! • Construct a framework • Consider implicit questions • Plan the outline • Keep reviewingthe case until it makes sense • Make a clear recommendation • Is my case balanced?

17. SGUL Officer: Written Case The writing process: putting your case on paper

18. Your case is NOT: • a legal argument • your own opinion • an essay • an instruction • a submission • a witch hunt • an attempt to paint a unilateral dark picture of the student

19. Your case is: • balanced account of facts • assistance for the Committee • summary of issues and relevant guidelines • explanation of the SGUL position • advice to the Committeeon what outcome SGUL wants

20. Good case • clear • written in plain English • well-structured with clear headings • divided numbered paragraphs • one issue per paragraph - may include mitigation • chronological and logical • coherent • brings together relevant evidence from different sources • avoids irrelevance and trifling issues • signposted/referenced to evidence clearly • balanced - includes your take on the mitigating factors

21. Hearing Committee Student with or without a representative SGUL Presenting Officer Clerk The Hearing Committee shall consist of seven members who have not previously been concerned in the case (including being Investigating Officer), or have provided pastoral care for the student and ideally have not been teachers of the student in question. These shall be: a A senior member of SGUL academic staff – who will be the Chair b Lay member c Student from another Higher Education Institution d Clinician from another Higher Education Institution or Trust e Psychiatrist from SGUL f One clinician from SGUL from the same profession as a student g Course Director (from a course other than the student’s) 3x external appointments, 1x appointment from another course,  3 internal

23. The overriding objective CPR Rule 1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable – (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders.

24. Evidence and admissibility Standard of proof: Balance of probabilities Re B [2008] UKHL 35, Baroness Hale: ‘In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did.’

25. Evidence and admissibility The provision that governs admissibility is Rule 34 of the General Medical Council (Fitness to Practice) Rules 2004: Rule 34 (1) Subject to paragraph (2), the Committee or a Panel may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law. (2) Where evidence would not be admissible in criminal proceedings in England, the Committee or Panel shall not admit such evidence unless, on the advice of the Legal Assessor, they are satisfied that their duty of making due inquiry into the case before them makes its admission desirable. General Medical Council (Fitness to Practice and Constitution of Panels and Investigation Committee) Amendment Rules 2013 removed Rule 34(2) completely. Therefore a Panel may now admit any evidence it considers fair and relevant to the case before it, whether or not it would be admissible in a court of law; Similar for Committees using rules by other regulatory bodies, e.g.: Nursing & Midwifery Council Rule 31 General Dental Council Rule 57 Health Professions Council Rule 10

26. Evidence • Not criminal rules • Not civil rules • A hybrid • RELEVANT and FAIR= ADMISSIBLE

27. Relevance • When assessing, important principle :‘More probative than prejudicial’ • Shouldn’t be a complex argument if not straightforward to tie evidence to an issue then the evidence most likely is irrelevant • The art of advocacy rather than legal argument

28. Fairness • Often the more testing argument • Argument often due to the evidence being some kind of hearsay / not being best evidence, documentary hearsay or due to non-attendance of a witness • Hearsay - CEA 1995 s. 1(1): In civil proceedings evidence shall not be excluded on the ground that it is hearsay. But s.2 says that A party proposing to adduce hearsay evidence in civil proceedings shall (…) give to the other party or parties to the proceedings— (a) such notice (if any) of that fact, and (b) on request, such particulars of or relating to the evidence, as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from its being hearsay. • (Article 6 ECHR & Disability legislation) more for SGUL rather than officers

29. SGUL procedures • All SGUL internal student procedures, the regulations of the University and any external guidance/rules have been written to take into account the legal principles if follow the procedure = best practice/defensible !The Student procedures are reviewed and amended at the end of each academic year (published 1 Sept) to incorporate any new external requirements !!The Hearing Committee briefing takes places immediately ahead of the private meeting on the day of the hearing. It acts as a refresher – role, responsibility, requirements, decision making etc.

30. Order of the hearing* • Introductions • Changes to the procedure • SGUL Presenting officer presents the SGUL case • Student's response • SGUL Presenting officer’s questions to student • Representative or accompanying person makes a statement (optional) • Questions from the Committee members • SGUL Presenting officer’s closing statement  • Student’s closing statement  • Committee considers the case in private (Clerk present) • Student and representative withdraw • Committee considers decision *!Can be altered if advance notice, but resist pressures to change on the day - role of Chair

31. SGUL Officer at the Hearing • Presents oral SGUL case • Responds to student’s case • Questions the student • (Challenges new evidence) • Summarises the case

32. Questioning • You can question the student or witnesses • Is it worth it? - If after student’s statement the case remains strong, do not prolong the agony! • Remember, listening first. • Look out for: • “I don’t recall” • “I don’t know” • “I agree with most allegations” • “As a general rule” • “It really doesn’t matter” • Closed or open questions: for closed, you should already know the answer • Dealing with factual contradictions • Dealing with evasive answers

33. Questioning tips Tip No. 1 Do not ask questions! LISTEN Other tips: • ask simple, single, clear questions • ask for facts • sometimes for opinions (?) when e.g. showing issues with integrity - only if you have a clear reason

34. Hearing Committee Chair • knows the documentation inside-out • manages process and contributions • final say re procedure and conduct of the parties and committee members • ensures all parties can speak freely without intimidation • questions through the chair • moderates Committeediscussion • respects dissenting views but avoids conflicts

35. Representatives* • Can make a statement at the end • They are also humans with multiple competing pressures • Preparation variable • Good ones: presenting the best possible case for the student - but that’s what we all want for max fairness and balance! *Representatives – includes supporters e.g. friends/family etc. Regardless of who the supporter or representative is, students should speak for themselves

36. Representatives Might attempt to intimidate when their case is weak or when unprepared, so: • keep calm and progress your case • respond using facts • ignore personal attacks - the Committeewill see through • take questions only from the student and through Chair, and vice versa • keep asking for evidence and facts • chair should deal with inappropriate behaviour • don't agree to anything that would make you uncomfortable • address the Committeeand take questions only from Chair

37. Any questions?