Guidance

Suitability rules for forensic pathologists, 2018 (accessible version)

Updated 13 August 2019

01 January 2013 (as amended November 2018)

Section A: Introduction

1. To ensure that the register can be relied on to indicate definitively which forensic pathologists are suitable for the register, the Secretary of State for the Home Department, hereon-in referred to as the ‘home secretary’, has issued these rules to deal with pathologists whose conduct, (including malpractice and misconduct) professional performance or state of health calls into question whether they should remain on the register, when, to do so may compromise the integrity of the register or the criminal justice system. Nothing in these rules limits the powers of the PDB and the home secretary in relation to enforcing the mandatory requirements of the register.

2. These rules are separate from any arrangements for the investigation of complaints by the General Medical Council (GMC) and any investigations by a doctor’s responsible officer. Information gathered in relation to the investigation of complaints using these rules may be shared with the GMC and the responsible officer in accordance with their statutory responsibilities. The primary consideration of the GMC is to protect patient safety, whilst these rules exist to ensure that the integrity of the register and the criminal justice system are protected. These rules allow for sanctions against a forensic pathologist on the register even if a pathologist is deemed fit to practice by the GMC.

3. Time periods and cross references to other rules are underlined in bold and in red. Words in these rules, which are defined in section C and section D, and used in that context, are highlighted in bold and black.

4. The home secretary may issue guidance to support the operation of these rules and such guidance may be placed after the end of these rules as appendices but shall not form part of these rules. Such guidance shall come into force on the date of issue or any later date specified by the home secretary.

5. These rules come into force on the commencement date and shall apply to any complaint received on or after that date regardless of when the incident complained of occurred. Nothing in these rules will affect the statutory responsibilities of the responsible officer in the discharge of his duties to the GMC.

6. Where these rules are modified by the home secretary, the new version of the rules shall, subject to the right of the home secretary to implement such transitional arrangements as he deems appropriate, take effect on the date specified by the home secretary. The modified rules, subject to the right to implement transitional arrangements and the provisions of Rule 6, shall apply to all complaints received after they become effective and all complaints received before they become active where no final determination has been reached.

7. Where a complaint against a pathologist was received prior to the introduction of modified procedures but no final determination reached by the date the modified procedures become effective and the pathologist believes the conditions set out below are met he may ask the PDB chair to act to modify the procedures in use in his case to ensure a fair hearing of the matter. The conditions noted above are:

   • 7.1 The modified procedures lead to a significant difference in the consideration of the complaint against the pathologist;

   • 7.2 The difference in the consideration of the complaint is such as to have a serious and adverse impact on the pathologist; and

   • 7.3 As a consequence, the pathologist cannot achieve a fair hearing under the modified procedures.

Section B: Key Principles

8. The application of these rules shall be governed at all times by the following principles:

Overriding requirement

8.1 The overriding requirement is to protect the public interest by ensuring that the register continues to identify only those forensic pathologists of sufficient skill, experience, judgement, integrity and credibility who retain the home secretary’s confidence as being suitable for the register.

Other factors to consider

8.2 The home secretary demands the highest standard of competence and integrity for members of the register whilst recognising that infallibility is not expected but that ongoing credibility as an expert witness is essential.

8.3 The emphasis will be on the protection of the public by the promotion of good practice and by guarding against the risk of prejudicing criminal investigations or proceedings. As many complaints as possible (subject to the overriding requirement to protect the public interest), will be handled through advice, warnings, training or similar measures as agreed with the responsible officer.

8.4 Where it is clear from the outset that a complaint is not one of such a nature as to call in to question the ongoing or future suitability for the register of the pathologist, and after consultation with the responsible officer, the matter (after due investigation) may be (with the agreement of the pathologist) dealt with summarily by the secretary who will have the discretion to dispose of the matter without referral to the review committee of the PDB, referred to from hereafter as ‘the committee’. If at any time during this process, the pathologist objects to the secretary’s handling of the complaint or subsequent disposal of the matter, the pathologist may request its referral to the committee in accordance with these rules.

8.5 Action against a pathologist under these rules will be that judged most likely to serve the public interest and, where appropriate, to secure the pathologist’s ongoing and future suitability for the register.

8.6 In considering any allegation against a pathologist, institutions will aim to establish whether the pathologist is suitable for the register, and, if not, in the light of any relevant mitigating factors, to take the action necessary in the interests of the public and, where not in conflict with the public interest, of the pathologist.

8.7 The institutions will have regard to (but not be limited to) the following factors when deciding whether to take action in relation to the pathologist and if so what action or sanction to take, and after due consultation with the responsible officer:

• 8.7.1 The gravity of the matter;
• 8.7.2 Whether more than one incident is involved;
• 8.7.3 The extent of the present risk to others or to the risk of prejudicing criminal investigations or proceedings;
• 8.7.4 Whether the pathologist acted deliberately, recklessly, accidentally or in bad faith;
• 8.7.5 Whether the failure stems from inadvertence, lack of training or experience; negligence or incompetence;
• 8.7.6 Whether the pathologist neglected or disregarded his professional responsibilities;
• 8.7.7 Whether the private record, taken together with the complaint (or complaints) under consideration, suggest a pattern that amounts to misconduct or malpractice or other reason to suggest unsuitability for the register;
• 8.7.8 Whether the pathologist failed to comply with advice or guidance issued by the PDB; the responsible officer; any of its committees or a person or body acting on its or their behalf; the Forensic Science Regulator or the GMC;
• 8.7.9 Whether there is evidence that a serious health problem may be affecting the pathologist’s behaviour or professional performance;
• 8.7.10 The current admission criteria to be on the register; and
• 8.7.11 The interim measures if any proposed by the pathologist.

Procedural fairness

8.8 The rules, procedures, practices, policies and case law relating to other regulatory regimes (such as the GMC) and the case law in relation to professional negligence are not to be incorporated in any way into the procedures.

8.9 All processes must be fair, objective, transparent and free from discrimination.

8.10 The procedures will be subject to the rules of natural justice. For the avoidance of doubt the home secretary does not accept that Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is applicable to the register.

8.11 All complaints will be handled and disposed of as promptly as reasonably practical.

8.12 No individual may adjudicate at more than one stage of a case. However, this does not prevent the secretary carrying out their other administrative and procedural duties in relation to a case.

8.13 A pathologist should be permitted an adjournment if he has not had a reasonable opportunity to consider any of the allegations or charges under consideration.

Duty to co-operate

8.14 The pathologist is under a duty to co-operate with those given functions in relation to him under these rules and to comply with the requirements of these rules and with any sanction.

Legal representation

8.15 A pathologist answering an allegation will have the right to be legally represented, the right to be accompanied at a hearing or personal appearance by a friend, relative or colleague, and the right not to attend a hearing or personal appearance and to send a legal representative in his place.

8.16 The actions and omissions of the pathologist’s representative will be attributed to the pathologist.

Interrelationship to third party proceedings

8.17 The procedures will operate separately from any other proceedings in which the same, or similar, facts or issues are being considered by a separate body (for instance the GMC or the responsible officer). However, the responsible officer will direct the secretary to investigate the case for them and also the same examiner will be used (person agreed between them) but that the responsible officer will consider the outcome of the investigation separately and come to their own conclusion related to their separate statutory role.

8.18 Investigations may be co-ordinated with other bodies in relation to disciplinary action.

8.19 Consideration of a complaint may only in highly exceptional circumstances be delayed allowing completion of proceedings based on the same or similar matter by a separate body.

8.20 Where action is being taken against a pathologist by the GMC, the committee shall not normally suspend action on a complaint. Where the GMC’s action is expected to be completed imminently and is reasonably likely to result in erasure from the medical register, action by the committee may be suspended on the grounds that further action may be unnecessary.

8.20.1 The deliberations of the GMC (save in relation to erasure from the medical register or restriction on registration) do not determine the actions of the institutions. The High Court in the case of R (on the application of Dr Paula Anastasia Lannas) v Secretary of State for the Home Department [2003] EWHC 3142 (Admin) said “It is the minister’s responsibility and duty to administer the scheme and to see that the proper standards are maintained and that they are elevated. It is for the minister through the board to set the standards which are required. It would be quite wrong if he did take a course which would amount to delegating the performance of his duty to the General Medical Council, a body over which he has no control and whose standards are for them and are not standards devised by him through the board.”

8.21 Disciplinary action against a pathologist will be suspended if the matter that is the subject of the complaint has led to the criminal prosecution of the pathologist or any other person and would interfere with that prosecution or would interfere with any criminal prosecution (save that the PDB chair will at all times be able to suspend the pathologist from the register). The action will be re-instituted when the risk of impact on the criminal case has ended.

8.22 Where any person with functions under these rules is considering a complaint resulting from (or in any way dealing with) the conviction of a pathologist in any criminal court, the verdict of (and, if relevant, the sentence imposed by) that court may not be challenged in any way.

8.23 Where any person with functions under these rules is considering a complaint arising from (or in any way dealing with) a finding, action or sanction by the GMC, the Royal College of Pathologists (or any court dealing with issues arising from such a finding etc) the finding of (and, if relevant, any sanction imposed) the GMC, Royal College of Pathologists and/or court shall not be challenged in any way.

Notifications, deadlines and extensions

8.24 Where a response is requested or required from the pathologist and the pathologist is not able to provide a response by the given deadline due to (a) being away from their normal location; (b) illness or (c) for some other reason, then the examiner, secretary, PDB chair or the institutions may extend the deadline. In cases where an action has already been taken without the response of the pathologist the body involved may choose to reconsider that action. In all cases it shall be for the pathologist to prove the fact it was not possible to respond within the period given.

8.25 Where a notification deadline relates to the pathologist or a response is requested or required from the pathologist the examiner, secretary, PDB chair or the institutions as appropriate to the particular response/notification may, at their discretion, extend the deadline. A request for an extension of time must be submitted at least five days prior to the deadline in relation to which an extension is being sought. Only in the most exceptional circumstances will a deadline be extended to allow a response/notification to be submitted less than five days before the meeting at which it is to be considered. In any case where a response/notification is not received by the deadline, or where it has been extended under this section, by the new deadline, it shall be determined that no response/notification was received.

8.26 Where at any point in the disciplinary process a response is requested from the pathologist or notification required and a deadline set by which the response/notification must be provided the deadline shall, unless an alternative is specified in writing, expire at 4pm on the date given.

8.27 As regards correspondence with the pathologist, proof of delivery by recorded post (or other similar method) shall be conclusive proof of notification, service etc. The address used shall be that given on the register, unless the pathologist notifies the secretary that a different address should be used. In cases where the pathologist has nominated someone to represent them, the pathologist may nominate this person to receive all letters and enclosures in connection with his case.

8.28 Where a party agrees to the use of electronic forms of delivery (including fax and e-mail) these may be used for notification, service etc. The fax number or e-mail address employed shall be that provided by the party.

8.29 Where any party wishes to make representations, submissions or in any other way raise matters before the institutions the material, of whatever form, to be presented shall be provided not less than five days prior to the meeting at which it is to be considered. Where this requirement is not met it shall be determined that no material was received or submitted.

Costs

8.30 Save as provided for elsewhere in the rules, the institutions shall have no power to award costs.

8.31 Costs associated with witnesses shall normally be met by the party instructing them.

8.32 An institution may order the payment by the PDB, of reasonable expenses and/or fees of witnesses who give evidence, whether oral or written if it believes it is necessary to do so to ensure a fair hearing of the matter.

8.33 Where the conditions set out below are met, an institution may recommend to the home secretary that an ex-gratia payment be made to the pathologist to assist with reasonable legal costs associated with the representation before an institution. The conditions applying to this paragraph are:

• 8.33.1 No charge shall have been found proved against the pathologist;
• 8.33.2 No finding that the pathologist’s suitability for the register has been brought into question shall have been made; and
• 8.33.3 The relevant institution shall be satisfied that the proceedings were not caused, or prolonged, by any act or omission of the pathologist or his representatives.

8.34 The home secretary considers that it is the responsibility of each member of the register (either alone or in collaboration with their employer or group practice) to insure themselves against any loss of income arising from any suspension from the register.

Section C: Definitions and Interpretations

Definitions

9. In these rules, the following definitions will be used (unless the circumstances make clear that this is not intended):

Term	Definition
Adjudicator	The appeal adjudicator appointed to hear an appeal under these rules and who shall be legally qualified and who shall not be a Home Office official or employee, a member of the PDB, the committee, the RTC, the pathologist’s responsible officer nor have been a member of the tribunal.
Assessor	A professional member who is designated by the PDB chair or secretary to assess the competence of a pathologist and who may be the PDB’s independent responsible officer and who must not be a member of the committee or tribunal.
Code of Conduct	The code of conduct issued under the title ’Good Medical Practice in Forensic Pathology’ and any other documents in force at the time of the incident and issued by or on behalf of the home secretary or the PDB either declared to constitute a code of conduct that sets out standards of conduct required of registered forensic pathologists or having a similar purpose to a code of conduct.
Code of Practice	‘The Code of Practice and Performance Standards for Forensic Pathology in England, Wales and Northern Ireland’ issued by or on behalf of the home secretary and any document in force at the time of the incident either declared by or on behalf of the home secretary or the PDB to constitute a code of practice or having a similar purpose.
Commencement Date	The date on which the current rules commence.
Committee, the	The Review Committee of the PDB.
Criminal Conviction Procedure	This is set out in section F at Rules 78 – 79.
Designated Parties	- Chief Officers of police - The National Police Cheifs’ Council’s lead for forensic pathology - H.M. Coroners - The Chief Coroner - All persons on the register - All rota coordinators - The Director of Public Prosecutions - The Attorney General of England and Wales - The employer - The responsible officer - The Criminal Cases Review Commission - The Independent Office for Police Conduct - The GMC - The PDB’s independent responsible officer - Any other person or organisation that the secretary believes to be necessary to notify to protect the integrity of the criminal justice system.
Employer	References to an employer within the procedures refer to cases where a pathologist provides services as a forensic pathologist as part of his employment. In these cases, the organisation for which he works will be considered his employer regardless of its legal position. Where a pathologist provides services direct to the police or coroners he shall be considered not to have an employer.
Examiner	A person appointed by the secretary to examine a complaint. This could be the secretary in person.
Group Practice	All Home Office registered forensic pathologists are required to join one of the six forensic pathology group practice areas, as listed on GOV.UK and stipulated in ‘The process and criteria for recommendation for admission to the Home Secretary’s Register of Forensic Pathologists’.
GMC	The General Medical Council
Institution	Any of the committee, the tribunal, the tribunal chair and the adjudicator.
Interim Measures	A measure either agreed by the pathologist or imposed on the pathologist by the secretary to secure the integrity of the Register and the criminal justice system.
Key Principles	The principles set out in section B of these rules.
Lay Member	A person who is not, nor has been: - A forensic pathologist in the UK or elsewhere; or - A person licensed to practise as a medical practitioner in the UK or elsewhere. Their function shall be to represent the public interest and to ensure that the discussion does not turn inward and become exclusively concerned with professional and technical matters and focussed on purely professional interests.
Legally Qualified	Means a person who is or has at some time qualified to practise as a solicitor or barrister within England & Wales or in positions equivalent to solicitor or barrister in Scotland or Northern Ireland.
Local Parties	In relation to the geographical area in which the pathologist is or has been working: - HM Coroners - Chief officers of police - Crown Prosecution Service - His employer - The rota coordinator for his group practice - The other members of his group practice The responsible officer.
Malpractice	Breach of the Code of Practice.
Medical Register	The GMC List of Registered Medical Practitioners.
Misconduct	Breach of the Code of Conduct or such other behaviour that brings the pathologist’s suitability for the register into question.
Non-Cooperation Procedure	The procedure set out in section J.
Pathologist	The forensic pathologist against whom a complaint has been made.
PDB	The Pathology Delivery Board
PDB Chair	This shall be the chair of the PDB unless, for any reason, he is not able to undertake the duties as such. In this case the home secretary shall nominate a person to act in this capacity with regard to the procedures.
Police	References to the police, and chief officers of police, shall be taken to refer to the following bodies and the persons in charge of them: - The 43 territorial police forces in England and Wales - The National Police Chief’s Council of England, Wales and Northern Ireland - The British Transport Police - Ministry of Defence Police - The Civil Nuclear Constabulary - The National Crime Agency - Service Police
Private Advice	Written advice by the committee to the pathologist on his conduct or professional practice which shall not form part of the public record but which shall form part of the private record.
Private Interview	An interview with the pathologist to discuss the private advice given by the committee.
Private Record	Records of complaints and/or disciplinary action against a pathologist (whether or not currently on the register) held by the PDB, the Home Office or the GMC which are available to, and may be used by, the institutions when considering a complaint against a pathologist. Ideally it should identify: - The nature of the complaint. - The finding in relation to the complaint. - The sanction imposed or other determination of the matter. - Whether the pathologist is prohibited from applying for registration. The private record may contain material held by the PDB’s predecessor and by the Scientific Standards Committee. Material in the private record is retained indefinitely, because of potential allegations of miscarriage of justice.
Procedures	The rules and any guidance issued hereunder.
Professional Member	A person who is now, or has at some time, been a forensic pathologist on the register (and who must not have been removed from the register as the result of disciplinary action nor have resigned during the currency of a disciplinary investigation) or who has held a similar position outside of England and Wales.
Public Record	Information which will be disclosed to the public which shall include any sanction once the period for appeal in relation to the sanction has lapsed or any appeal has been concluded and ideally should indicate: - The nature of the complaint. - The finding in relation to the complaint. - The sanction imposed or other determination of the matter. - Whether the pathologist is prohibited from applying for registration. The public record may contain material held by the PDB’s predecessor and by the Scientific Standards Committee. Material in the public record is retained indefinitely, because of allegations of miscarriage of justice.
Register	The Home Secretary’s Register of Forensic Pathologists also known as the Home Office Register of Forensic Pathologists.
Responsible Officer	The responsible officer for the pathologist in accordance with the Medical Profession (Responsible Officer) Regulations 2010 and Medical Profession (Responsible Officer) (Amendment) Regulations, 2013 (as may be amended or varied from time to time) or where no such person has been appointed for the pathologist, the PDB’s independent responsible officer.
RTC	The Registration and Training Committee of the PDB.
Sanction/s	Any of the following as defined in section D: - Assessment Order: -Fees Order: - Health Order: - Public Advice: - Supervision Order: - Suspension Order: - Training Order: - Removal: - Reprimand: - Restriction Order
Secretary	The secretary to the PDB. If, for any reason, he is not able to undertake the duties as such the PDB chair or home secretary shall nominate a person to act in this capacity with regard to the procedures.
Suitable for the register	A pathologist shall be regarded for the purposes of these Rules as suitable for the register if there are no matters concerning his conduct (including malpractice or misconduct), his professional performance, or his state of (physical or mental) health which (when considered together) make him unsuitable to be or remain personally recommended by the home secretary as a person of sufficient qualification skill and experience to offer expert and credible assistance to coroners, police and courts in cases of violent or suspicious death. The phrases “suitability for the register” and “unsuitable for the register” shall be construed accordingly.
Tribunal	A suitability tribunal of the PDB.
Tribunal Chair	The chair of the suitability tribunal.
Tribunal Clerk	A person or organisation appointed by the PDB chair to clerk a suitability tribunal, who may not be: - The secretary, - A member of the register, - The examiner, - A member of the committee, - A member of the RTC or a member of the PDB - The responsible officer

Interpretations

10. References to one gender shall be deemed to include references to the other genders.

11. Reference within the procedures to criminal courts shall be taken to include any court in the United Kingdom or elsewhere which has jurisdiction over matters which (a) are considered criminal within that jurisdiction or (b) would be considered to be a criminal matter if dealt with in England and Wales. In this regard a court-martial, whether related to the armed forces of the United Kingdom or not, shall be considered to be a criminal court.

12. Reference within the procedures to a criminal offence shall be taken to include any offence contrary to the criminal or military law of the country where prosecution occurred.

13. Where the procedures refer to any act of parliament or statutory instrument the reference shall be taken to refer to the act or instrument as modified by any subsequent legislation or, if repealed, to any subsequent act or Instrument dealing with the same subject.

14. Where the procedures refer to any person or body the reference shall be taken to include any person or body which subsequently takes responsibility for the relevant matters.

15. Where in the procedures a period is specified by a number of days the following provisions shall apply to the implementation of the period – (unless an alternative is specified in writing):

• 15.1 The period shall include all calendar days including weekends and public holidays.

• 15.2 That every day shall end at 4pm.

• 15.3 Where the period expires on weekend or public holiday the period shall be extended to end at 10am on the first working day after the weekend or public holiday.

Section D: Sanctions

Delay in implementation of sanctions

16. No sanction determined by the committee, the tribunal or the PDB chair (under the criminal convictions procedure) shall be implemented:

Automatic suspension

17.

17.1. In the event that the committee refers a complaint against the pathologist to the tribunal the pathologist will automatically be suspended from the register until the proceedings are completed. This automatic suspension will commence 14 days after the pathologist is sent notification of the referral.

17.2. In the event that the GMC suspends the pathologist from its medical register the pathologist shall automatically be suspended from the register with immediate effect for the same period as the GMC’s suspension.

18. Where the committee, tribunal or PDB chair (under the criminal conviction procedure) imposes removal the pathologist shall be suspended from the register until the period for lodging an appeal has expired and no appeal lodged or, where an appeal is lodged, pending the outcome of the appeal. There is no mechanism for lifting an automatic suspension under this Rule 18.

19. In the event of an automatic suspension under Rule 17.1 the pathologist may apply in writing to the PDB chair within seven days of being notified of the automatic suspension for it to be annulled.

20. An application under Rule 19 would need to be justified on extraordinary grounds given that the committee would have formed a view (after giving the pathologist a chance to make written representations) that the pathologist’s conduct was sufficient to warrant removal.

21. There shall be no appeal from the decision of the PDB chair on an application under Rule 19 to annul an automatic suspension under Rule 17.

22. An application under Rule 19 must set out the alternative measures the pathologist proposes to secure the integrity of the criminal justice system, and if such measures have not been proposed before by the pathologist, an explanation why they were not proposed at an earlier stage.

23. In determining an application under Rule 19 whether to annul an automatic suspension under Rule 17 the PDB chair will have regard to:

• 23.1 The examiner’s report to the committee;

• 23.2 The pathologist’s written responses to the committee;

• 23.3 The private record;

• 23.4 The committee’s reasons for finding that the pathologist’s suitability for the register was questioned;

• 23.5 Any interim measures proposed by the pathologist;

• 23.6 Any interim measures imposed by the secretary;

• 23.7 The risk to the integrity of the criminal justice system of a pathologist continuing to be instructed to conduct forensic post mortem examinations when there is a significant risk that they may be removed from the register;

• 23.8 The effect of suspension as set out in Rule 26 (and in particular the ongoing ability of the pathologist to give evidence in court notwithstanding the suspension);

• 23.9 The key principles; and

• 23.10 Any other material he considers relevant

24. If, following an application under Rule 19, the PDB chair does annul an automatic suspension under Rule 17 the PDB chair must make an order imposing any measures he sees fit to secure the integrity of the criminal justice system pending the outcome of the referral to the tribunal and this may include (but is not limited to) any measure equivalent to any sanction (other than removal or a suspension order) or equivalent to an interim measure. There is no right of appeal against any measure imposed by the PDB chair as a replacement for automatic suspension.

25. If, following an application under Rule 19, the PDB chair does annul an automatic suspension under Rule 17 he must annotate the public version of the register identifying the measures imposed by him as a replacement for automatic suspension.

Effect of suspension

26. If a pathologist is suspended from the register in whatever circumstances and whether under these rules or not:

• 26.1 The pathologist must not hold themselves out as a current member of the register.

• 26.2 The public version of the register must be annotated to show that the person is suspended and on what basis.

• 26.3 The pathologist must not appear on any rota of any group practice to perform post mortem examinations for the criminal justice system.

• 26.4 The Crown Prosecution Service, all chief officers of police and HM coroners, the chief coroner and the responsible officer must be informed by the secretary of the suspension immediately.

• 26.5 The pathologist must in writing inform all prosecution teams in current criminal investigations or proceedings in which he is involved (whether advising the Crown or the defence) that he has been suspended.

• 26.6 The pathologist may give evidence in ongoing criminal proceedings providing he informs both the prosecution and defence that he is currently suspended from the register.

• 26.7 The pathologist must in writing inform any person seeking to instruct him during the period of suspension on behalf of the defence that he is currently suspended from the register.

• 26.8 The pathologist must in writing inform any coroner seeking to instruct him during the period of suspension on routine coronial work that he is currently suspended from the register.

• 26.9 The pathologist must disclose all written notification under Rules 26.5, 26.7 and 26.8 to the secretary upon request.

Particular sanctions in alphabetical order:

Assessment Order

27. An assessment order is an order that the pathologist’s competence is assessed by the assessor and that if the pathologist fails the assessment the pathologist shall be automatically suspended from the register, if not already suspended.

28. If the pathologist fails the assessment of competence the matter shall be immediately referred to the committee which shall invite the pathologist on 21 days’ notice to make representations to it or to make a personal appearance before it to explain why he should not be removed from the register or what other measures may be taken to ensure his suitability for the register. The committee may then decide to impose any of the sanctions (including removal) alone or in combination.

29. If the pathologist passes the assessment of competence the committee shall meet within 35 days to consider lifting any training order, supervision order, suspension order or restriction order.

30. If the pathologist neither passes nor fails the assessment of competence the committee shall meet within 35 days to consider the assessor’s report and impose any further sanctions (other than removal) it considers necessary to secure the pathologist’s suitability for the register.

Fees Order

31. A fees order is an order that the pathologist repay (by a specified date) or forego his fees in relation to a particular case where the committee or tribunal find that his service did not meet the standard that might reasonably have been expected. The fees order would normally be imposed in combination with another sanction.

Health Order

32. A health order is an order that the pathologist’s health be assessed by an independent medical examiner at the cost of the PDB and that the committee consider the pathologist’s suitability for the register in the light of the report and any other medical evidence provided by the pathologist.

Public Advice

33. Public advice is written advice to the pathologist on his conduct or professional practice which shall form part of the public record.

34. Public advice may involve requiring an apology to be given to another person.

35. It would normally be appropriate to give public advice in the following circumstances:

• 35.1 The charge proved demonstrates a failure by the pathologist that was due to inadvertence or lack of training/experience, and

• 35.2 The failure was of a relatively minor nature, and

• 35.3 The institution believes that the provision of advice will be sufficient to ensure that the standard of work by the pathologist will be of the expected standard; and

• 35.4 The pathologist has not been the subject of disciplinary action in the previous five years and has not previously been the subject of disciplinary action in relation to a failure of a similar nature.

Removal

36. Removal means the removal of the pathologist from the register by one of the institutions or by the PDB chair under the criminal conviction procedure.

37. Removal automatically acts as a permanent prohibition from re-applying for membership of the register.

38. Where a removal order is being considered by the tribunal or the adjudicator, removal would be the appropriate sanction in any of the following circumstances:

• 38.1 The charge proven shows a standard of conduct or work that poses a risk of prejudicing criminal investigations or proceedings or undermining the integrity of the register;

• 38.2 The charge proved is of a nature that would undermine the pathologist’s credibility as an expert witness; or

• 38.3 The charge proved, whilst not of itself sufficient to warrant removal, when taken with previous disciplinary action or complaints demonstrates that the pathologist was not suitable for the register. In this regard, there is a presumption that if the pathologist has been the subject of a reprimand or a suspension order (or its equivalent) within the previous ten years, the sanction imposed will be removal.

Reprimand

39. A reprimand is a written warning to the pathologist that any future misconduct or malpractice may result in his removal.

40. A reprimand would normally be appropriate if:

• 40.1 The finding shows a clear failure on the part of the pathologist;

• 40.2 The failure is serious or one of a number of relatively minor errors; and

• 40.3 The institution does not believe that removal is warranted but wishes to issue a clear warning that any further failure is likely to lead to removal.

41. A reprimand may be imposed with all sanctions other than removal.

42. The final wording of a reprimand will be settled by the committee, irrespective of which institution made the sanction.

Restriction Order

43. A restriction order is an order that the pathologist refrain from undertaking a particular area of forensic pathology for the criminal justice system and that if the pathologist does not satisfy the committee of his competence in the restricted area within a specified period the pathologist will be subject to removal.

44. If a restriction order is made an assessment order must be made.

45. A restriction order would normally be appropriate where:

• 45.1 The pathologist’s failure shows a lack of training or experience;

• 45.2 The institution is not content that public advice, a training order and supervision order by themselves would ensure the standards required are achieved sufficiently to protect the criminal justice system;

• 45.3 Valuable service to the criminal justice system could be given by the pathologist in areas where his competence was not questioned; and

• 45.4 A suspension order was inappropriate

46. If the pathologist fails to satisfy the committee of his competence by the time set out in the restriction order the matter shall be immediately referred to the committee who shall invite the pathologist on 21 days’ notice to make representations to it or to make a personal appearance before it to explain why he should not be removed from the register or what other measures may be taken to ensure his suitability for the register. The committee may then decide to impose any of the sanctions (including removal) alone or in combination.

47. Restrictions may include but not limited to:

• 47.1 Not conducting forensic post mortem examinations in relation to children; and/or,

• 47.2 Not conducting forensic post mortem examinations where sexual assault is alleged.

Supervision Order

48. A supervision order is an order that the ongoing work of the pathologist for the criminal justice system shall be supervised by the assessor or by another named person and that if the pathologist does not satisfy the committee of his competence within a specified period the pathologist will be subject to removal.

49. The cost of such supervision shall not be at the cost of the PDB.

50. If a supervision order is made an assessment order must also be made.

51. A supervision order would normally be appropriate where the pathologist’s failure shows a lack of training or experience and the institution is not content that public advice or training by themselves would ensure the standards required are achieved.

52. If the pathologist fails to satisfy the committee of his competence by the time set out in the supervision order the matter shall be immediately referred to the committee which shall invite the pathologist on 21 days’ notice to make representations to it or to make a personal appearance before it to explain why he should not be removed from the register or what other measures may be taken to ensure his suitability for the register. The committee may then decide to impose any of the sanctions (including removal) alone or in combination.

Suspension Order

53. A suspension order is an order that the pathologist is suspended from the register and setting out the requirements necessary for the suspension to be ended and specifying the date (which may be determined by reference to the start of the suspension) by which the suspension must end.

54. Where the date for the ending of suspension is reached and in the opinion of the committee (after giving the pathologist 21 days’ notice to make written representations or if he prefers a personal appearance before the committee) the requirements set have not been met, the suspension shall alter to a removal without the matter being referred to the tribunal.

55. A suspension order would be appropriate where the institution believes that it would present an unacceptable risk to the criminal justice system to allow the pathologist to practise whilst remedial action was undertaken to secure his suitability for the register.

56. A suspension order would ordinarily be made in conjunction with at least one of a training order, a supervision order, a health order or an assessment order.

Training Order

57. A training order is an order that the pathologist attend specified training courses or provision within a specified period at his own cost or the cost of his group practice or employer.

58. A training order would normally only be appropriate if:

• 58.1 The finding demonstrated a lack of knowledge or experience;

• 58.2 There is no evidence of a pattern of failure or other reason to believe the pathologist is unsuitable for the register; and

• 58.3 The pathologist has not been subject to disciplinary action in the previous five years.

59. If a training order is made an assessment order must also be made to ensure that the training has had a remedial effect on the pathologist’s practice.

60. A training order will usually be made in combination with either a suspension order or a restriction order.

Section E: The Home Secretary

Absolute unfettered discretion

61. The register is the home secretary’s personal recommendation of a forensic pathologist. The home secretary therefore determines, in their absolute discretion, who shall be placed, or remain, on the register. It is therefore essential that all pathologists on the register maintain the confidence of the home secretary.

62. The home secretary (at their own instance or at the recommendation of the PDB chair) may suspend or remove a pathologist from the register if believed to be appropriate to do so to uphold public confidence in the register or the criminal justice system or to protect the integrity of the register or the criminal justice system. There is no right of appeal against such suspension or removal.

63. The home secretary may amend these rules, issue new versions of existing rules, add new rules or remove rules as he sees fit. In preparing new or amended rules the home secretary may consult anyone the home secretary deems appropriate but may act without such consultation.

Abnormal circumstances

64. Where the PDB or its related committees cannot offer advice under normal circumstances to the home secretary, he shall act directly. In relation to complaints, this situation may arise when those acting under the procedures cannot or cannot within a period considered reasonable by the home secretary, reach a determination on a complaint or any determination under the procedures has been made and is later successfully challenged in any court.

65. In any of the circumstances envisaged in Rule 64 or in any other circumstances where a complaint cannot be determined (or cannot be determined within a period considered reasonable by the home secretary) according to the procedures, the home secretary shall determine whether he is content to continue to recommend the pathologist. In making this determination the home secretary may consider such information as he considers relevant including, but not limited to, the following:

• 65.1 The complaint against the pathologist;

• 65.2 The pathologist’s response, if any, to the complaint;

• 65.3 The conduct of the pathologist (and his representatives) in responding to the complaint;

• 65.4 The pathologist’s private record;

• 65.5 Whether the pathologist would, due to the complaint and related circumstances, have difficulty acting as an expert witness;

• 65.6 The importance of his recommendation;

• 65.7 The impact on the criminal justice system of his recommendation; and

• 65.8 The interests of the criminal justice system.

66. In making a decision under Rule 64 as to whether he is content to continue to recommend the pathologist, the home secretary is not making a determination of whether the complaint against the pathologist is justified. He is making a determination of whether, on the available information, he is content to continue to recommend the pathologist.

67. Where the home secretary is not satisfied that it is in the interests of the criminal justice system and/or the public interest to continue to recommend the pathologist he shall determine that the pathologist be removed from the register. There is no appeal from the determination of the home secretary under Rule 64.

Effect of direct removal by the home secretary

68. Where the pathologist is removed from the register directly by the home secretary he shall be prohibited from re-admission to the register and may only be re-admitted to the register on the approval of the home secretary.

Delegation

69. Where the home secretary exercises his power to issue guidance to support these rules, the assignment of responsibility or power within such guidance shall be considered an effective assignment or delegation of the relevant power or responsibility. Any assignment or delegation within such guidance shall not preclude any alternative or further assignment, delegation or nomination etc. allowed by these rules.

70. Where the procedures provide for a matter to be dealt with by the home secretary this may also be dealt with by any minister, whether the Minister of State or the Parliamentary under Secretary of State, at the Home Office. The home secretary may delegate any power assigned to him/her by these rules to any person or body he deems appropriate.

Copyright consent

71. All records of the PDB shall be subject to Crown copyright and shall not be reproduced without the home secretary’s consent.

Representations

72. The home secretary is responsible for all matters of policy related to the register and its use within the criminal justice system. Therefore:

• 72.1 The home secretary may make such representations to the institutions as he considers appropriate; and

• 72.2 The institutions may request representation from the home secretary.

Section F: The Pathology Delivery Board Chair

General powers and delegation

73. Separate from any power granted by these rules, the PDB chair acting on behalf of the home secretary in accordance with the Constitution of the PDB, may (at his own instance or on the recommendation of the secretary) suspend the pathologist from the register. The period of suspension shall be that deemed appropriate by the PDB chair.

74. The procedures have attempted to deal with the handling of complaints under all circumstances that can be envisaged. However, it is recognised that circumstances may arise that have not been foreseen or that cases may occur where following the procedures would (a) not be in the public interest; or (b) may not allow a fair hearing of the matter. The PDB chair has (whilst considering the key principles) the power to take any action, or authorise any action, which is, in his opinion, appropriate in the public interest or the interest of a fair handling of a complaint.

75. The PDB chair may delegate any of his powers under the rules to the secretary on either a general or specific basis.

76. The PDB chair shall take such steps as are appropriate to give effect to the result of any disciplinary action. This may include, but not be limited to, the following:

• 76.1 To modify the register to reflect any sanction;

• 76.2 To ensure all records of the action are held and records relating to the pathologist are updated; and/or

• 76.3 To ensure the responsibility for any ongoing action has been assigned and a plan for monitoring it established.

The Criminal Conviction Procedure

77. The PDB chair may remove a pathologist from the register if:

• 77.1 The pathologist is convicted of any criminal offence which in the PDB chair’s opinion makes the pathologist unsuitable for the register and

• 77.2 The period for appeal against conviction or custodial sentence has lapsed or any appeal against conviction or sentence has been completed.

78. Where the PDB chair has exercised his power of removal under Rule 76, the pathologist will have the right to appeal against the removal to the adjudicator provided the appeal is exercised within 14 days of the date of the removal in writing to the secretary.

79. If the chair determines not to remove the pathologist, the matter may proceed to the committee as a live complaint.

Disclosure of information

80. The PDB chair shall have the right to restrict the information in the public or private record if he believes it necessary in the public interest. He also has the right to restrict the disclosure of information contained in those records.

81. The PDB chair shall have authority to disclose information in circumstances not set out in these Rules if it is, in his opinion, necessary in the public interest or the interests of the criminal justice system.

82. Papers before the tribunal and the adjudicator and transcripts or minutes of their public proceedings shall be made available to the public at a cost unless the PDB chair, adjudicator or tribunal chair directs they shall be private. This shall not require the disclosure of papers, such as post mortem reports, which (a) may have been discussed in a public hearing but not made available to non-parties and (b) are not, in the opinion of the PDB chair suitable for publication.

83. The PDB chair may charge appropriate costs to cover the cost of production of materials before supplying them to any person.

Section G: Examining Complaints

Identifying a complaint

84. A complaint is any information provided to or coming to the attention of the secretary that could suggest a pathologist may not be suitable for the register.

85. Any person or organisation can make a complaint. All complaints must also be notified to the PDB’s Independent responsible officer in order that the responsible officer can conduct his responsibilities to the GMC.

86. Where information which could form the basis of a complaint comes to the attention of the secretary, but not in the form of a complaint direct to the secretary, it may be difficult to identify an individual to act as the complainant. In such cases the secretary shall make the formal reference on behalf of the complainant. Examples include, but are not limited to, the following:

• 86.1 Criticism in the judgement of any court of law;

• 86.2 Criticism in the news media;

• 86.3 Criticism by any public or judicial inquiry;

• 86.4 Criticism by an appropriate professional or regulatory body; or

• 86.5 Conviction by any criminal court.

87. For the avoidance of doubt a complaint may refer to the pathologist’s work or conduct:

• 87.1 Outside England & Wales;

• 87.2 On a routine coronial autopsy;

• 87.3 An autopsy for any armed forces police force;

• 87.4 For the defence;

• 87.5 In relation to a critical conclusion check or peer review performed on the work of another forensic pathologist; or

• 87.6 On a post mortem examination not performed under the code of practice.

88. A criticism, decision, determination, sanction or other action by a professional or regulatory body (or of any court reviewing such a matter) which leads to the pathologist no longer being able to meet the requirements for registration (for example the removal of a licence to practise by the GMC) shall not be dealt with under the procedures. Such cases shall be dealt with outside these Rules by the PDB chair as a failure to comply with registration requirements.

Initial assessment by the secretary

89.

89.1 In cases where the secretary considers that the complaint is not one of such a nature as to call in to question the ongoing or future suitability for the register of the pathologist; at the secretary’s discretion, and with the agreement of the pathologist, it may be dealt with administratively by the secretary, without the need for the secretary to refer the matter for investigation under the live complaints procedure and subsequent referral to the committee. All such cases must however be referred also to the responsible officer.

89.2 This will apply (but not be limited) to matters such as:

• Complaints relating to delays in reporting cases by the pathologist.

• Complaints by police or coroners concerning the alleged rude behaviour or attitude of the pathologist towards others at the death scene or mortuary.

• Complaints concerning issues of process not connected with the medical aspects of the pathologist’s work.

89.3 In cases of this nature, the secretary shall instruct the examiner to conduct such investigations as are necessary to determine the facts of the matter complained of and provide a report for the secretary’s consideration.

89.4 Where having considered the facts in the examiner’s report, the secretary is of the view that the matter is not of a sufficiently serious nature as to call in to question the ongoing or future suitability for the register of the pathologist, the secretary shall take one or more of the following courses of action:

• issue a formal warning in writing to the pathologist informing him that details of the complaint will be retained on the pathologist’s private record and may be used as supporting evidence in future cases where complaints of a similar nature are made against the pathologist.

• require the pathologist to attend a private interview with the secretary and where deemed appropriate the responsible officer. The pathologist shall acknowledge the private advice in writing and shall confirm in writing that he shall accept the advice. Details of the private interview will be retained on the pathologist’s private record and may be used as supporting evidence in future cases where complaints of a similar nature are made against the pathologist.

• refer the matter to the pathologist’s group practice manager for internal management or administrative action by the group practice manager.

89.5 The secretary or examiner will notify the responsible officer of all matters dealt with under Rule 89.

89.6 If at any time during this process, the pathologist objects to the secretary’s handling of the complaint or subsequent disposal of the matter, they may request its referral to the committee in accordance with Rule 90 below.

89.7 In cases where repeat complaints of a similar nature are received against the pathologist, the secretary at his discretion may refer any such subsequent complaint for investigation and where necessary referral to the committee in accordance with Rule 90 below.

89.8 Where the secretary deems the complaint to be trivial or unfounded, he may dismiss the complaint and take no further action against the pathologist and make or cause to be made a note of his determination on the pathologist’s private record. The secretary shall inform the pathologist in writing of the outcome and action taken.

90. In cases where the secretary considers that a complaint is of such nature as to call in to question the ongoing or future suitability for the register of the pathologist, the secretary will as soon as reasonably practicable after receiving a complaint determine if the complaint is ‘live’. A complaint is live if:

• 90.1 The pathologist is on the register at the time of the complaint is received by the secretary;

• 90.2 The pathologist was on the register; or was training to be on the register at the time of the alleged events forming the complaint; or was not on the register at the time of the alleged events but the allegation has such a direct bearing on the pathologist’s suitability for the register that the question of whether he was not on the register at the time of the alleged events forming the complaint is subordinate to the public interest;

• 90.3 The complaint is made by an identifiable person or organisation (or, if not, is nevertheless still capable of investigation);

• 90.4 The complaint is not trivial;

• 90.5 The complaint is not vexatious;

• 90.6 The complaint has not previously been dealt with by the committee;

• 90.7 The complaint has been presented within three years of the date of the alleged events forming the complaint (except where the complaint has such direct bearing on the pathologist’s suitability for the register that the question of excessive delay in bringing complaint is subordinate to the public interest);

• 90.8 The complaint is not one where the PDB chair is going to exercise his power of removal under the criminal conviction procedure; and

• 90.9 The complaint is not one where the PDB chair is going to exercise his general power of suspension and recommendation for removal for failure to comply with a mandatory requirement to be on the register.

Steps by the secretary after initial assessment

91. If the secretary determines that the complaint is not live he shall:

• 91.1 Inform the complainant; and

• 91.2 In circumstances where the pathologist is not on the register, ensure that details of the complaint are recorded so that in the event that the pathologist later applies for membership of the register the information is available to the PDB.

92. If the secretary determines that the complaint is live (and does not fall to be dealt with under the non-cooperation procedure) he shall:

• 92.1 Inform the complainant;

• 92.2 Inform the pathologist (as soon as reasonably practical and at such a time that does not prejudice the investigation) that:

  • 92.2.1 A live complaint has been received;

  • 92.2.2 The examiner will be investigating the complaint;

  • 92.2.3 The procedures can be downloaded from the Internet;

  • 92.2.4 He may if he wishes comment on the complaint at any time during the investigation;

  • 92.2.5 He has an obligation to inform the prosecution team in any live matter about the fact of the complaint;

  • 92.2.6 He must discuss the complaint and possible interim measures with a senior colleague in the group practice identified by the secretary;

  • 92.2.7 The pathologist has 14 days in which to indicate what, if any, interim measures he proposes to implement to protect the integrity of the register and the criminal justice system during the period of investigation;

  • 92.2.8 The secretary will after 21 days be informing the local parties that a complaint has been made, that it is being investigated, that no determination has been made whether the complaint makes the pathologist unsuitable for the register and if interim measures are in place;

  • 92.2.9 He should as soon as possible and in any event within 21 days provide any documents requested to the examiner.

• 92.3 If the secretary believes it is necessary to protect the integrity of the criminal justice system notify the Crown Prosecution Service of the complaint at any time;

• 92.4 Instruct the examiner to undertake such investigations as the examiner considers appropriate and to prepare a written report for the committee;

• 92.5 On or after 21 days from the date of his letter to the pathologist, inform the local parties of:

  • 92.5.1 The fact of the complaint;

  • 92.5.2 That it is being considered by the examiner;

  • 92.5.3 That no determination whether the complaint makes the pathologist unsuitable for the register has been made; and

  • 92.5.4 Whether interim measures have been put in place.

• 92.6 Impose such interim measures as he deems necessary to protect the integrity of the register and the criminal justice system during the period of investigation provided that he has:

  • 92.6.1 Given the pathologist seven days’ notice of the proposed interim measures and an opportunity to make written representations and

  • 92.6.2 Set down a date within the following 30 days to review the interim measures.

• 92.7 Send a copy of the examiner’s written report of the complaint for the committee to the pathologist, giving him 21 days in which to make written representations on the report and notifying him of the potential actions available to the committee. Inform him of the right to make any written representations in relation to mitigation or potential action and in particular drawing his attention to the fact that the committee has the power to refer the matter to the tribunal if they consider that removal is appropriate with the effect of such a referral being automatic suspension from the register.

• 92.8 Convene a meeting of the committee to take place at least 28 days after the date the examiner’s written report on the complaint is sent to the pathologist.

• 92.9 Present the examiner’s written report on the complaint to the committee for its consideration.

93. The examiner’s investigation may include (but not be limited to):

• 93.1 The instruction of an independent forensic pathologist or other expert (who shall not at the time of instruction be the pathologists responsible officer, the PDB’s independent responsible officer, a member of the pathologist’s group practice or member of the committee);

• 93.2 Interviewing the complainant, the pathologist, other members of the register and other relevant people;

• 93.3 Obtaining documents from the pathologist, the group practice, the relevant coroner, the police, the relevant paramedic ambulance service, the relevant hospital;

• 93.4 Obtaining relevant court transcripts or records;

• 93.5 Obtaining the senior investigating officer’s policy log;

• 93.6 An examination of the pathologist’s workload; and

• 93.7 An examination of the pathologist’s private record;

• 93.8 Any other enquiry deemed necessary and proportionate.

Interim measures

94. An interim measure will last until:

• 94.1 The secretary or the PDB chair discharge it on their own instance or on request from the pathologist, the responsible officer or the pathologist’s group practice;

• 94.2 The committee discharges it after considering the complaint; or

• 94.3 Any sanction imposed by the committee or tribunal takes effect if it is not previously discharged.

95. Imposed interim measures may only include requiring the pathologist to:

• 95.1 Ensure that all the pathologist’s work or a particular sub-set of his work is subject to enhanced critical conclusions checking or peer review by any one or more of: a member of the group practice, the responsible officer, the PDB’s independent responsible officer or his most recent appraiser for the GMC revalidation process;

• 95.2 Report weekly on his workload to any one or more of: the secretary, the responsible officer, the PDB’s independent responsible officer or his most recent appraiser for the GMC revalidation process;

• 95.3 Contact any one or more of: the responsible officer, the PDB’s independent responsible officer or his most recent appraiser for the GMC revalidation process for professional guidance in relation to the matters raised by the complaint;

• 95.4 Reduce the number of hours on call to an appropriate level to avoid problems from over-working; or

• 95.5 Remove himself from the rota for the police force area where the complaint arose in order to remove conflict of interest.

96. A pathologist may ask the secretary or the PDB chair to review an imposed interim measure and may make written representations.

97. The fact that an interim measure is in place is disclosed to the local parties but it is not disclosed whether the interim measure was agreed or imposed.

98. The content of an interim measure remains private (and forms part of the private record) and is not ordinarily disclosed by the PDB to the local parties (unless the pathologist requests that the details of the interim measures are disclosed by the PDB to the local parties) and does not form part of the public record.

Section H: The Review Committee

The composition of the committee

99. The members of the committee shall be appointed by the PDB chair and shall comprise at least:

• 99.1 Two professional members;

• 99.2 One person to represent the interests of coroners;

• 99.3 One additional legally qualified lay member; and

• 99.4 One lay member nominated by the NPCC lead for forensic pathology or equivalent;

100. The secretary shall maintain a list of senior and experienced forensic pathologists to sit as substitute members of the committee in circumstances arising under Rule 125 or if a professional member of the committee or a pathologist member is not able to attend a committee meeting.

101. During the course of considering a complaint or taking action on a complaint the membership of the committee may change and this shall not invalidate any decision taken by the committee at any time.

102. The following may not be members of the committee:

• 102.1 Officials or employees of the Home Office;

• 102.2 The responsible officer;

• 102.3 The PDB’s independent responsible officer; or

• 102.4 The Forensic Science Regulator.

Meetings of the committee

103. The committee shall meet as required by the secretary.

104. The committee shall choose its chair from its own members save that the committee may not be chaired by a professional member.

105. The examiner shall not be a member of the committee but may attend meetings where any report of his is presented to the committee.

106. The secretary shall not be a member of the committee but shall attend all meetings apart from when the committee retires to consider representations by a pathologist at a personal appearance or in writing in lieu of a personal appearance.

107. Save as set out elsewhere in these rules meetings and minutes of the committee are private and confidential.

108. The committee shall meet in public session (unless on application from the secretary or the pathologist it agrees to meet in private) when:

• 108.1 The pathologist makes a personal appearance; or

• 108.2 The pathologist makes written representations in lieu of a personal appearance (in which case the committee can ‘meet’ via secure video/audio conference facilities if appropriate).

109. Appointment to the committee shall be in accordance with any terms of reference of the committee set by the PDB.

110. The home secretary reserves the right to appoint members of the committee to serve for such period as he shall determine.

111. Any three members will constitute a quorum.

112. Where a quorate committee meets in the absence of the chair the members present shall select a member to chair the meeting.

113. In the event that the chair has to withdraw from the meeting he may ask any member to chair that part, or parts, of the meeting from which he is absent. Where the chair does not select a person to act as chair those members present may select a member to act as chair.

114. Where a meeting of the committee is not quorate for the consideration of a particular complaint (perhaps because of the number of persons who withdrew due to issues of conflict) the chair has the following options:

• 114.1 To postpone the consideration of the matter to the next meeting of the committee.

• 114.2 To continue consideration and make a preliminary recommendation on the matter. This recommendation shall be circulated to those members of the committee who were not present at the meeting but would have been eligible to vote had they been at the meeting. The letter shall remind members of the provisions regarding withdrawal from consideration and set a deadline for response. The recommendation will not take effect unless the majority (taking account of the chair’s casting vote) of those voting do so in favour of the recommendation within the specified time.

115. Which course of action to take is a matter at the discretion of the chair, taking into account the interest in having a fair and speedy process.

116. No member or members of the committee may participate in the investigation of any complaint unless they have information relating to the complaint in which case they shall recuse themselves from the committee meeting dealing with the complaint.

117. In the event that a forensic pathologist member has to recuse himself from consideration of a particular complaint the PDB chair may appoint another professional member to replace that person on the committee to consider the particular complaint from the secretary’s list.

118. The committee shall act upon a simple majority of those voting, the chair of the committee (or person acting as chair) having a casting vote in addition to his normal vote in the event of a tie.

119. The committee may permit persons to attend its meetings as observers for training purposes etc.; and may invite persons to attend to provide it with relevant information. Such persons may include officials or employees of the Home Office and the examiner. Any such person may not participate in the determination of the committee.

120. Where a pathologist makes a personal appearance, the committee shall adopt such procedures it deems appropriate to allow the pathologist to make representations.

121. Where a pathologist has made a personal appearance before the committee or has provided written representations in lieu of a personal appearance and the committee is considering imposing a sanction no one other than members of the committee shall be present when the committee considers what sanction (if any) to propose save that the committee’s legal adviser may be present.

122. The legal or other representatives appointed by the committee shall be paid a reasonable remuneration for the work done on the committee’s behalf.

123. The secretary will prepare formal minutes of all meetings of the committee. The minutes will record the nature of the allegation in each case, the figures in any matters put to the vote and the decision of the committee as to the disposal of each case.

124. The minutes of the committee’s meetings are confidential save in relation to its public sessions.

125. Any member of the committee must withdraw from consideration of a complaint where there is reason to believe his involvement would reasonably bring the impartiality of the body into question. Examples of circumstances which may prevent a person serving include, but are not limited to, the following:

• 125.1 He has a vested interest in the outcome of the action.

• 125.2 He was involved, in any way, in a case that gave rise to the complaint.

• 125.3 He was, in any way, involved in making the complaint.

• 125.4 He investigated the complaint on behalf of the committee.

• 125.5 He has a professional or personal relationship with persons that could reasonably lead to his impartiality being questioned.

• 125.6 He is subject to disciplinary action under the procedures.

• 125.7 He is involved with a review of the matter in any other arena e.g. GMC hearing.

• 125.8 He has within the last five years sat on a body other than the committee considering a complaint against the same pathologist.

126. A member should also withdraw if he falls into any of the categories above in relation to a different complaint against the same pathologist that is, or is likely to come, under consideration by the committee

127. The committee shall have the authority to adopt such procedures, rules or conventions etc. that it believes are appropriate or desirable for the effective implementation and application of the procedures.

Delegation to the secretary

128. The committee may delegate to the secretary the day to day instruction of legal representatives in relation to and the conduct of any tribunal or appeal to an adjudicator. For the avoidance of doubt the decision to appeal against a sanction on grounds of leniency can only be made by the committee.

129. Presentation of the examiner’s written report. The committee shall consider the written report and, where provided, any written submissions by the pathologist.

130. If no written submissions are received from the pathologist, the committee shall proceed as if the pathologist’s response had been to deny the substance and the validity of the complaint in its entirety.

Section I: The Review Committee’s Consideration of a Complaint

Dismiss as “not live”

131. The committee may dismiss the complaint as no longer being live as set out in section G at Rule 90 in which case it must:

• 131.1 Notify the pathologist;

• 131.2 Notify the responsible officer;

• 131.3 Notify the local parties;

• 131.4 Notify the complainant; and

• 131.5 Ensure the matter is recorded on the private record.

Postpone

132. The committee may postpone further consideration of the complaint pending further investigation or enquiry in which case it must:

• 132.1 Notify the pathologist;

• 132.2 Notify the responsible officer;

• 132.3 Notify the local parties;

• 132.4 Notify the complainant.

133. The committee may postpone further consideration of the complaint pending resolution of criminal proceedings in which case it must:

• 133.1 Notify the pathologist;

• 133.2 Notify the responsible officer;

• 133.3 Notify the local parties;

• 133.4 Notify the complainant.

Refer to GMC

134. The committee may refer the matter to the GMC (regardless of any other action it may take) in which case it must:

• 134.1 Notify the pathologist;

• 134.2 Notify the responsible officer;

• 134.3 Notify the local parties;

• 134.4 Notify the complainant; and

• 134.5 Notify the GMC.

Make external recommendations

135. The committee may regardless of any other finding or action conclude that there are issues raised by the complaint which go beyond the conduct of the pathologist and may make recommendations to any persons as it sees fit.

No action

136. The committee may find that the pathologist’s suitability for the register is not questioned and that no action is required in which case it must:

• 136.1 Notify the pathologist;

• 136.2 Notify the responsible officer;

• 136.3 Notify the local parties;

• 136.4 Notify the complainant; and

• 136.5 Ensure the matter is recorded on the private record.

137. ‘No action’ would only be appropriate if the committee was satisfied that any failure or concern identified was already being adequately addressed.

Action short of sanctions

138. The committee may find that the pathologist’s suitability for the register is not questioned but that his conduct is nevertheless such as to give cause for concern in which case it must:

• 138.1 Give private advice to the pathologist;

• 138.2 Require the pathologist within 28 days of the private advice to attend a private interview with the responsible officer or the PDB’s independent responsible officer or another person determined by the committee;

• 138.3 Notify the local parties; and

• 138.4 Notify the complainant.

139. Private advice and private interview will normally only be appropriate where the essential facts are clear and not in dispute and the committee has concerns that are not sufficiently serious to warrant a sanction.

140. The pathologist shall acknowledge the private advice in writing and shall confirm in writing that he shall accept the advice.

141. At the private interview, the pathologist will seek to agree with the interviewer a mechanism to ensure the private advice is followed and to undertake any remedial action relating to the committee’s concerns.

142. The interviewer shall keep a note of the private interview which shall form part of the private record and shall circulate that to the pathologist and to the committee.

143. The interviewer may refer the matter to the committee for further action if he is concerned that the pathologist has not taken appropriate remedial action. Such further action may include making a finding that the pathologist’s suitability for the register is questioned (irrespective of its earlier finding to the contrary).

144. There is no right of appeal against the committee’s decision to give private advice or to require the pathologist to attend a private interview.

Refer to tribunal

145. The committee may find that the pathologist’s suitability for the register is questioned and that the sanction of removal is appropriate in which case it:

• 145.1 Must refer the complaint to the tribunal;

• 145.2 Ask the secretary to convene the tribunal and to arrange the preparation of charges for the tribunal;

• 145.3 Cannot make any other sanction;

• 145.4 Must inform the complainant and the designated parties of:

  • 145.4.1 The referral to the tribunal;

  • 145.4.2 The automatic suspension from the register which takes effect 14 days after the date notification is sent to the pathologist;

  • 145.4.3 The pathologist’s right to apply within seven days to annul the automatic suspension;

  • 145.4.4 A brief outline of the complaint referred;

  • 145.4.5 The fact that the referral to the tribunal means that based on the material seen so far, the committee considers that removal would be appropriate but that the tribunal as an independent body may disagree with the committee and decide that the pathologist’s suitability for the register is not questioned, to take no action or to impose lesser sanctions to secure the pathologist’s suitability for the register.

• 145.5 Annotate the public version of the register with the fact of the referral

• 145.6 Annotate the public version of the register with the fact of the automatic suspension, unless lifted by the PDB chair under Rule 19.

• 145.7 Must inform the pathologist of:

  • 145.7.1 The referral to the tribunal;

  • 145.7.2 Its reasons for its finding that his suitability for the register is questioned;

  • 145.7.3 The automatic suspension from the register takes effect 14 days after the date of notification is sent to the pathologist;

  • 145.7.4 His right to apply within seven days to the PDB chair to annul the automatic suspension.

146. There is no right of appeal against the committee’s decision to refer a complaint to the tribunal.

Suggest and impose own sanctions (other than removal)

147. The committee may find that the pathologist’s suitability for the register is questioned but that the sanction of removal is not appropriate in which case it must:

• 147.1 Notify the complainant;

• 147.2 Notify the responsible officer;

• 147.3 Notify the local parties;

• 147.4 Write to the pathologist:

  • 147.4.1 Informing him of its reasons for its finding that his suitability for the register is questioned;

  • 147.4.2 Indicating which sanction or combination of sanctions (other than removal) it is considering imposing;

  • 147.4.3 Inviting him to either submit written representations to the committee or if the pathologist prefers, make a personal appearance before the committee at its next meeting (which shall be at least 21 days after the letter to the pathologist);

  • 147.4.4 Advising him that after considering written representations or a personal appearance the committee may nevertheless subsequently decide that the sanction of removal is appropriate and refer the complaint to the tribunal.

148. Only after a further meeting at least 21 days after the letter referred to in Rule 145.7 above, finds that the pathologist’s suitability for the register is questioned and that the sanction of removal would not be appropriate it may make any (alone or in combination) sanction (other than removal) in which case it shall:

• 148.1 Inform the pathologist in writing of:

  • 148.1.1 Reasons for its finding that his suitability for the register is questioned;

  • 148.1.2 The sanctions and its reasons for imposing the sanctions;

  • 148.1.3 His right to appeal in writing to the secretary within 14 days; and

  • 148.1.4 The fact that the sanctions are not implemented until any appeal is concluded.

• 148.2 Notify the complainant and designated parties of:

  • 148.2.1 The sanctions imposed;

  • 148.2.2 The pathologist’s right to appeal in writing to the secretary within 14 days; and

  • 148.2.3 The fact that the sanctions are not implemented until any appeal is concluded;

• 148.3 Annotate the public version of the register with details of the sanctions, the right of appeal and the fact that sanctions are not implemented until any appeal is concluded.

Section J: Avoidance of Jurisdiction

149. If at any stage of the disciplinary proceedings the pathologist fails or refuses to co-operate with the requirements of any person or body acting under the procedures, or fails or refuses to comply with any sanction imposed as part of a disciplinary process (whether under the procedures or any earlier form or disciplinary action) or with the requirements of these rules the secretary shall write to the pathologist and the rota coordinator:

• 149.1 Requesting an explanation for the pathologist’s apparent non-cooperation or non-compliance within 14 days; and

• 149.2 Informing the pathologist that the matter will be referred to the committee for consideration and that it has the power to remove him from the register.

150. The secretary shall convene the committee to meet after the expiry of the 14-day deadline.

151. After the expiry of the 14-day deadline the committee may remove the pathologist from the register.

152. If the committee considers that the pathologist is not deliberately failing or refusing to cooperate or comply it should warn him that any future failure to co- operate or comply will result in removal. There is no right of appeal against such a warning.

153. The presumption shall be in favour of removal where the committee considers that the pathologist:

• 153.1 Was deliberately refusing or had deliberately refused to co-operate or comply;

• 153.2 Has made a statement that is false, and he knew or ought to have known it was false;

• 153.3 Has made a statement reckless as to whether it was true;

• 153.4 Has made a statement which is intended to mislead the recipient, or

• 153.5 Has made a statement which is not sufficiently frank to avoid the recipient being misled.

154. If the committee does impose removal any other proceedings in relation to the pathologist shall be adjourned until any appeal has been concluded.

155. It would be possible for a pathologist to resign from the register to avoid a complaint being dealt with under the procedures.

156. Whilst such a resignation would, in part, meet the aims of the register it could allow a pathologist who was guilty of a serious error to continue to work with an apparently clean record. This is not in the interests of the criminal justice system.

157. To balance the needs of the criminal justice system with the need to be fair to all persons on the register, the following procedures shall be adopted.

Resignation prior to final committee determination

158. Where a pathologist resigns from the register after he has been notified of a complaint, and before the committee has finally determined what shall be done, the committee shall deal with the complaint under section I as far as possible.

159. In cases where the committee would, had the pathologist remained on the register, not have made a finding that his suitability for the register was questioned, it shall determine that no comment shall be recorded on the register, public record and private record.

160. In cases where the committee would, had the pathologist remained on the register, have made a finding that his suitability for the register was questioned, it shall determine that the register, the public record and the private record reflect that the pathologist resigned whilst subject to disciplinary action. In such cases the pathologist will be prohibited from applying for registration in the future.

Resignation after committee determination

161. Where the pathologist resigns from the register after the committee has decided to refer him to tribunal but before the proceedings have concluded the PDB chair shall determine that the register, the public record and private record reflect that the pathologist resigned whilst subject to disciplinary action. In such cases the pathologist will be prohibited from applying for registration in the future.

162. Upon the decision by the committee that the complaint shall form the subject matter of charges before a tribunal the steps set out in this section L shall be taken.

Section K: The Tribunal – Preparation for hearing

Setting out the committee’s case

163. The committee or its legal representative on its behalf shall prepare and serve on the pathologist and the tribunal clerk at least 49 days before the first day of the tribunal hearing:

• 163.1 Those document(s) setting out the charge or charges; and

• 163.2 A statement of the facts upon which the charges are founded and upon which the committee intends to rely.

164. The committee or its legal representative on its behalf shall prepare and serve on the pathologist and the tribunal clerk at least 49 days before the first day of the tribunal hearing copies of any documents (excluding privileged material and the confidential minutes of the committee) in its possession which relates to the charges.

165. The service of documents and statements on the pathologist may be a continuing process, as documents become available.

The tribunal clerk

166. The PDB chair shall at least 49 days before the first day of the tribunal appoint the tribunal clerk who shall perform the functions set down in these rules for the tribunal clerk and any other functions directed by the PDB chair or the tribunal chair and the PDB chair may appoint persons to deputise for the tribunal clerk and may at any time cancel the appointment of the tribunal clerk or deputy.

Membership of the tribunal

167. The PDB chair shall appoint the members of the tribunal as follows:

• 167.1 A legally qualified lay member as tribunal chair;

• 167.2 At least one additional lay member; and

• 167.3 At least one professional member, chosen, as far as reasonably practicable, with regard to the speciality of the pathologist (if this is relevant to the matter under consideration) unless the PDB chair determines that the tribunal shall sit without a professional member if he considers that:

  • 167.3.1 It is not reasonably practicable to form a sufficiently impartial tribunal; or

  • 167.3.2 The pathologist, or his representatives, may be seeking to frustrate the activities of the tribunal by challenging professional members or

  • 167.3.3 It is necessary to ensure a fair hearing and protect the public interest and/or the integrity of the register

168. The following shall not be appointed to the tribunal:

• 168.1 An official or employee of the Home Office;

• 168.2 A member of the committee, RTC or PDB;

• 168.3 A member of the group practice of which the pathologist is a member;

• 168.4 The responsible officer;

• 168.5 The PDB’s independent responsible officer; or

• 168.6 The Forensic Science Regulator.

Convening the tribunal

169. The PDB chair shall at least 49 days before the first day of the tribunal hearing issue a convening order to the pathologist, the members of the tribunal and the tribunal clerk specifying:

• 169.1 The date, time and place of the sitting of the tribunal at which it is proposed that the charge or charges should be heard;

• 169.2 The identities of those persons it is proposed should constitute the tribunal to hear the case;

• 169.3 The identity of the tribunal clerk;

• 169.4 The pathologist’s right to be represented at the hearing by counsel or solicitor, or any other professional association representative he may choose; and

• 169.5 His right, within seven days, to object to the membership of the tribunal.

• 169.6 The timetable of deadlines set by these rules for the preparation of the matter for hearing.

170. The PDB chair may alter the date, time and place or tribunal clerk set out in the convening order. Such alteration shall be notified to the pathologist. Any alteration bringing the date forward shall not provide less than 49 days’ notice. Any alteration delaying the date or changing the time or place shall not, unless the parties agree, provide less than 48 hours’ notice.

171. The pathologist shall have the right, upon receipt of the convening order to give notice to the PDB chair objecting to any one or more of the proposed members of the tribunal. The notice must be served within seven days of the date of the convening order and must specify the ground of objection. If satisfied that there are valid grounds of objection, the PDB chair may remove one or more of the proposed members of the tribunal and replace such members as he sees fit.

172. Where the PDB chair exercises his right to alter the composition of the tribunal the pathologist shall have the right, by like process to that set out in Rule 167, to object to any newly appointed member of the tribunal.

173. The PDB chair shall select another member of the relevant background to fill any vacancy in the tribunal membership that has arisen prior to the substantive hearing of the charge.

174. Any person selected to serve on a tribunal must declare themselves as unavailable for selection where there is reason to believe his involvement would reasonably bring the impartiality of the body into question. Examples of circumstances which may prevent a person serving include, but are not limited to, the following:

• 174.1 He has a vested interest in the outcome of the action;

• 174.2 He was involved, in any way, in a case that gave rise to the complaint;

• 174.3 He was, in any way, involved in making the complaint;

• 174.4 He has a professional or personal relationship with persons that could reasonably lead to his impartiality being questioned;

• 174.5 He is subject to disciplinary action under the procedures himself;

• 174.6 He is involved with a review of the matter in any other arena e.g. GMC hearing; or

• 174.7 He has previously sat on a body considering a complaint against the same pathologist.

Advanced disclosure of the pathologist’s case

175. The pathologist shall at least 28 days before the first day of the tribunal hearing provide to the committee:

• 175.1 Copies of any documents that he intends to place in evidence before the tribunal whether in relation to the charges or in relation to any potential sanction or mitigation;

• 175.2 Copies of any expert evidence or reports that he intends to present to the tribunal; and

• 175.3 Copies of any academic literature that he or any expert witness on his behalf intends to refer to in evidence.

176. The pathologist shall at least 28 days before the first day of the tribunal hearing provide to the committee and the tribunal clerk:

• 176.1 A statement setting out which charges he admits and which charges he denies;

• 176.2 A statement setting out which facts in the committee’s statement of facts are agreed and which are not agreed; and

• 176.3 A statement setting out whether the pathologist will be making any assertion in his evidence that any alleged deficiencies of his were caused by or contributed to in any way by any actions of other persons (including, without limitation, the coroner, the police, other pathologists, other medical professionals, ambulance or paramedic staff) and if such assertion is to be made setting out the details of the assertion.

Hearing bundle

177. At least 21 days before the first day of the tribunal hearing the committee shall serve on the pathologist and the tribunal clerk an index for the hearing bundle and on the pathologist copies of any additional documents not previously disclosed for inclusion in the hearing bundle.

178. At least 14 days before the first day of the tribunal hearing the pathologist shall serve on the committee and the tribunal clerk any amendments to the committee’s index for the hearing bundle.

179. The committee shall prepare at its cost sufficient copies of the paginated hearing bundle for the tribunal members and the witness stand.

180. The committee shall exclude from the hearing bundle material (whether supplied by the pathologist or the committee) that would be relevant to sanction (such as the private record) which could be prejudicial to a fair hearing of the complaint and may introduce such material to the hearing bundle if the tribunal indicates that the threshold for imposing sanction has been met.

181. If there is any dispute about whether a document should be admitted in the hearing bundle it may be resolved by a case management discussion or at the commencement of the tribunal hearing.

Exchange of witness statements

182. No person (including the pathologist and any expert witness called by either side) shall be able to give evidence to the tribunal (save with exceptional leave from the tribunal) unless a written statement setting out their evidence (preferably by reference to the relevant parts of the hearing bundle) has been served at least seven days before the first day of the tribunal hearing on the other party and on the tribunal clerk.

183. This requirement does not apply to any representative of the home secretary who may attend the hearing to make representations.

Case management discussions

184. Before the sitting of the tribunal at which the charge or charges are to be heard, the tribunal chair may hold one, or more, case management discussions for the purpose of giving directions and of taking such other steps as he considers necessary for the clarification of the issues before the tribunal, and generally for the just and expeditious handling of the proceedings.

185. The tribunal clerk shall take a note of the case management discussion and shall draw up a record to be served on the parties setting out the directions given or admissions made.

186. Case management discussions shall be held in private by the tribunal chair sitting alone and shall normally be heard by telephone conference call.

187. The hearing or part of a hearing (other than case management discussions) before the tribunal shall be in public unless the tribunal chair decides otherwise. He shall normally only do so if:

• 187.1 The pathologist has made an application that the hearing or part of the hearing shall be in private and the public interest does not otherwise require.

• 187.2 It is necessary to protect the privacy of those involved in cases under consideration; or

• 187.3 The interests of the criminal justice system require that the hearing be held in private.

Preparing for attendance of others at the substantive hearing

188. The tribunal chair may arrange for one, or more, specialist advisers to be present to advise on issues where the tribunal lacks the necessary expertise. Such a situation might arise, for example, when the evidence suggests a pathologist is suffering from a physical or mental condition that requires medical supervision or treatment, or where particular technical issues require specialised scrutiny. Such advisers may attend all of the hearing, but not any discussion the tribunal may have in private.

189. Meetings of the tribunal where evidence is heard will be recorded verbatim and the secretary shall take steps to ensure this occurs, at the PDB’s cost. The transcripts shall be made available to members of the tribunal, the committee and the pathologist.

Section L: The Tribunal – The Substantive Hearing

The conduct of the hearing

190. The tribunal is not strictly adversarial in its consideration of charges brought before it. It also has an inquisitorial function. A tribunal therefore has the power to enquire into the matter under its consideration beyond the evidence adduced by the parties.

191. The tribunal shall have the authority to adopt such procedures, rules or conventions etc. that it believes are appropriate or desirable for the effective implementation and application of the procedures.

192. The tribunal chair shall have responsibility for the management of the tribunal. In particular he shall be responsible for:

• 192.1 Ensuring the process is fair to all parties;

• 192.2 Ensuring the matter is dealt with expeditiously; and

• 192.3 Determining all issues of law and procedure.

193. The proceedings of the tribunal shall be governed by the rules of natural justice subject to which the tribunal may:

• 193.1 Admit any evidence, whether oral or written, whether direct or hearsay, and whether or not the same would be admissible in a court of law;

• 193.2 Give such directions with regard to the conduct of and procedure at the hearing, and with regard to the admission of evidence, as it considers appropriate for ensuring that the pathologist has a proper opportunity of answering the charge and the matter is dealt with expeditiously;

• 193.3 Proceed in the absence of the pathologist if satisfied that he has been duly notified of the charge or charges and of the hearing; and

• 193.4 Commission or direct further investigations.

194. Evidence to the tribunal shall be given on oath or affirmation.

195. The tribunal may after asking a witness to confirm the contents of his statement on oath, take the statement as read and proceed to allow any supplemental examination in chief.

196. A tribunal shall sit from day to day (Saturdays, Sundays, and bank holidays excepted) until it has arrived at a finding and, if any charge has been found proved, until the appropriate sanction is determined save that a tribunal may, if it decides that an adjournment is appropriate for any reason, adjourn the hearing for such period as it may decide.

Amendment of charges

197. The tribunal may at any time before or during the hearing direct that the charge or charges shall be amended provided that:

• 197.1 The tribunal is satisfied that the pathologist will not suffer substantial prejudice in the conduct of his defence; and

• 197.2 The tribunal shall, if so requested by the pathologist, adjourn for such time as is reasonably necessary to enable him to meet the charge or charges so amended.

198. An amendment of the charges may include the addition of a new charge and in particular a new charge arising from the evidence presented to the tribunal, without the need to follow the process for handling complaints set out in these rules.

199. The tribunal may amend the charges in line with its findings of fact but consider any representations from the pathologist.

Alteration of membership during hearing

200. If, after the beginning of the substantive hearing, members withdraw from the tribunal the composition shall not be altered unless it becomes inquorate. If this occurs the PDB chair may nominate replacement members and the substantive hearing shall be started afresh.

201. The proceedings of the tribunal shall be valid notwithstanding that one or more of the members other than the tribunal chair withdraws, so long as the tribunal does not become inquorate and at least one lay member is present.

202. A member of the tribunal who has been absent for any period during the substantive hearing shall take no further part in the proceedings. They may however take part if the substantive hearing of the matter is re-started.

The tribunal’s findings

203. Where the tribunal has to establish whether a fact is proved, the standard of proof shall be the “balance of probabilities”.

204. Except as provided for in the procedures the burden of proof shall rest on the representatives of the committee.

205. Firstly, it is the duty of a tribunal to come to a finding with respect to each particularised allegation in a charge (including any amended charge) on the basis of any evidence placed before the tribunal.

206. Secondly, it is the duty of the tribunal to make a finding whether the home secretary’s continued personal recommendation of a pathologist to be on the Register is brought into question (whether or not on the basis of its findings on the charges and on the basis of any other matter before the tribunal). In coming to the findings under Rule 205 the tribunal is not required to consider evidence of mitigation or remediation.

207. The findings of the tribunal shall be announced during the hearing and shall be set down in writing and signed by the tribunal chair and all members of the tribunal.

208. The setting down in writing and signing of the findings on each charge and its determination may be done during the hearing, at the conclusion of the hearing or, if the tribunal wish to reserve judgment, at some later date. If the members are not unanimous as to the finding on any charge, the finding to be recorded on the charge shall be that of the majority of those voting, the tribunal chair having a casting vote in addition to his ordinary vote in the event of a tie.

Considering Sanctions

209. Where the home secretary’s continued personal recommendation of the pathologist for the register is brought into question, the threshold for the imposition of a sanction is attained and it is the duty of the tribunal, in the light of any relevant mitigating factors, to take the action which it deems necessary in the interests of the public and, where not in conflict with the public interest, of the pathologist.

210. Where the home secretary’s continued personal recommendation of the pathologist for the register is brought into question, evidence may be given on any previous finding recorded on the pathologist’s private record or of any other matter or matters relevant to the imposition of any sanction.

211. Where the tribunal has found more than one charge proved against the pathologist it has the power to consider all of these together when determining the appropriate sanction.

212. After hearing any representations by or on behalf of the pathologist, the tribunal shall set down in writing its decision as to the sanction. If the members of the tribunal are not unanimous as to the sanction, the sanction to be recorded shall be that decided by the majority of those voting, the tribunal chair having a casting vote in addition to his ordinary vote in the event of a tie. The tribunal chair shall, either at the conclusion of the hearing or later in writing, deliver the tribunal’s decision and shall give the reasons for the decision.

213. If the tribunal finds that the pathologist’s suitability for the register is brought into question it may impose any sanction alone or in combination.

214. The tribunal may impose more than one sanction in relation to a charge found to have been proved.

215. In any case where a charge has been found proved, the tribunal may determine that no action should be taken against the pathologist.

216. The tribunal may, regardless of the finding in relation to charges brought before it, conclude that the evidence before them raises issues that reflect on the pathologist’s registration to act as a medical practitioner. In such cases the tribunal may refer the matter, and any appropriate evidence, to the GMC.

Records and papers

217. Tribunal papers (including minutes, transcripts and all material put before the tribunal) shall be made available (subject to the Rules), on request, to the parties to the tribunal. The papers, except those relating to issues dealt with in private or otherwise excluded by the tribunal chair or PDB chair, shall be made available to the public.

218. The tribunal chair has the power to order that the records prepared of the meetings of the tribunal (including preliminary hearings) which are to be made available to tribunal members and parties shall be edited to ensure that any material, which he has directed shall not be available to (a) other members of the panel or (b) the parties, is not published. Such an order shall have force until (a) the tribunal chair alters his order; (b) the tribunal has finished its consideration of the case or (c) indefinitely if the tribunal chair so orders. Where the tribunal chair exercises his authority to edit the records of meetings, unedited versions of the records shall also be prepared. Unedited versions shall be held by the tribunal clerk and provided to the tribunal chair and the Home Office.

Notification of outcome of tribunal

219. The secretary shall write to the pathologist to notify him formally of the outcome of the tribunal. In particular the letter shall (to the extent appropriate in the case):

• 219.1 Inform him of the finding;

• 219.2 Inform him of the sanction, if any, imposed and the implications;

• 219.3 Explain the right to appeal in writing to the secretary within 14 days;

• 219.4 Explain that the sanction shall not be imposed:

  • 219.4.1 Until the date by which an appeal has to be lodged has passed or,

  • 219.4.2 If an appeal is lodged within that period, until that appeal has been determined;

• 219.5 Where a tribunal has imposed removal explain he is automatically suspended from the register until either the period for lodging an appeal expires or the appeal is concluded.

220. The secretary shall write to the complainant and designated parties to inform them of the finding of the tribunal and the sanction imposed and that the pathologist has the right of appeal.

221. The secretary shall take such other steps as are, in his opinion, appropriate to implement the findings and Sanction.

Section M: Appeals to the Appeal Adjudicator

Grounds of appeal

222. A pathologist may appeal against removal imposed by the committee under the non-co-operation procedure on the grounds that:

• 222.1 The disciplinary process was materially unfair to the pathologist; and/or

• 222.2 The finding that the pathologist had not co-operated was manifestly wrong.

223. A pathologist may appeal against removal by the committee following failure to meet the requirements in a suspension order on the grounds that:

• 223.1 The disciplinary process was materially unfair to the pathologist; and/or

• 223.2 The finding that the pathologist has failed to meet the requirements in the suspension order was manifestly wrong.

224. A pathologist may appeal against removal by the committee following failure to satisfy the committee of his competence following an assessment order or within the period set down in a supervision order or a restriction order that:

• 224.1 The disciplinary process was materially unfair to the pathologist; and/or

• 224.2 The finding that the pathologist had failed to satisfy the committee of his competence was manifestly wrong.

225. A pathologist may appeal against removal imposed by the PDB chair under the criminal conviction procedure on the grounds that:

• 225.1 The finding that the pathologist had been convicted was manifestly wrong; and/or

• 225.2 The finding that the pathologist’s conviction was sufficiently serious to warrant removal was perverse.

226. A pathologist may appeal against any other sanction imposed by the tribunal or the committee on the grounds that:

• 226.1 The disciplinary process was materially unfair to the pathologist;

• 226.2 A finding of a material fact relating to a charge found proven was manifestly wrong;

• 226.3 The finding that the home secretary’s continued personal recommendation of the pathologist for the register was brought into question was perverse; and/or

• 226.4 The sanction imposed was excessive.

227. The committee may appeal against the ruling of the tribunal on the grounds that the sanction imposed by the tribunal was too lenient.

Time for presenting an appeal

228. Any notification of intention to appeal must be made to the secretary within 14 days of the sanction being notified to the pathologist.

229. The secretary shall notify the complainant and the designated parties if there has been an appeal and that the sanctions shall not be implemented until the appeal has concluded.

230. The secretary shall update the public version of the register to note that appeal.

Appointment of an adjudicator

231. The home secretary shall appoint an adjudicator and shall set a provisional date for oral argument before the adjudicator.

232. Either party may object to the home secretary in relation to the appointment of adjudicator within seven days of notification.

233. The adjudicator must recuse himself in the event of any actual conflict of interest and the home secretary may appoint another adjudicator.

Timetable for consideration of appeal

234. At least 49 days before the date set for provisional oral argument the appellant shall provide to the adjudicator, the respondent and the home secretary full grounds of appeal which must refer to the relevant extract from the record of the proceedings and the relevant documents before the original decision maker. These full grounds of appeal stand as the appellant’s written submissions.

235. At least 28 days before the date set for provisional oral argument the respondent shall provide to the adjudicator, the appellant and the home secretary the respondent’s response which must refer to the relevant extract from the record of the proceedings and the relevant documents before the original decision maker. The response shall stand as the respondent’s written submissions.

236. At least 21 days before the date set for provisional oral argument the home secretary may provide written submissions to the adjudicator, the appellant and the respondent.

237. At least 14 days before the date set for provisional oral argument the appellant may reply to the respondent’s response and the home secretary’s submissions.

238. At least seven days before the date set for provisional oral argument the adjudicator will review the relevant material and determine what, if any grounds of appeal he wishes to hear oral argument on and shall inform the appellant, respondent and home secretary.

239. Oral argument shall last no more than three hours in total and shall be heard in public (unless the adjudicator on the application of any party agrees to hear oral argument in private).

Powers of the adjudicator

240. The review by the adjudicator will be limited in its scope to consideration of the specific complaints made to the adjudicator.

241. The adjudicator may at any time determine that the appeal or a particular ground of appeal shall not proceed if he considers:

• 241.1 That the appeal was presented out of time; or

• 241.2 That the notice of appeal or grounds of appeal do not disclose a valid ground of appeal.

242. Regardless of the finding in respect of any appeal the adjudicator has the right to decline to intervene.

243. The adjudicator shall have the authority to adopt such procedures, rules or conventions etc. that he believes are appropriate or desirable for the effective implementation and application of the procedures and to exercise the equivalent powers to those of the tribunal chair in relation to tribunal proceedings.

244. The adjudicator shall have the power to reverse any sanction and impose any sanction that he believes appropriate.

Fresh evidence

245. Fresh evidence will not be admitted unless the party seeking to adduce it satisfies the adjudicator that it is necessary in the interests of justice to do so and that the evidence could not have been presented with reasonable diligence to the original decision maker.

Appendix 1: The Home Secretary’s Guidance to Members of the Tribunal

1 September 2012

This guidance does not form part of the rules.

It is the responsibility of the members of the tribunal to ensure that they have read and understood the contents of this guidance which outlines the principles for the conduct of tribunals.

Tribunals must not only be absolutely fair, independent and impartial in fact, but must also be seen to be so in practice. Prior to any hearing of the tribunal, any member who believes himself ineligible or unqualified for the role, or who knows something about the case, or who knows the accused or a potential witness or anyone else involved in the case should immediately inform the tribunal clerk. If similar concerns arise once the tribunal hearing has commenced he should immediately arrange to speak to the Tribunal Chair without mentioning the matter to anyone else.

Where a member raises concerns about contact with persons involved in the case, the tribunal chair and clerk should consider the matter. Where a member’s position has been compromised it may be necessary for him to be removed from the tribunal. This should not be done lightly as it may lead to the tribunal failing which is not desirable for any party. It may be appropriate to discuss the matters with representatives of the parties prior to making a decision to remove a member.

Throughout the hearing the members must avoid contact (which might call into question their impartiality) with the representatives of the parties, witnesses, or any other persons involved directly or indirectly with the proceedings, other than in the hearing itself. It is accepted that it may be impossible to avoid contact completely but such contact should be in relation to professional matters and should be reported to the clerk.

The members should make no attempt to discover any details about the matter before the Tribunal, apart from those presented in evidence.

When away from the hearing, the members should not discuss any aspect of a tribunal in progress. In any event no discussion of a tribunal in progress should take place unless all members are present.

No discussion whatsoever of the sanction, options or implications, no matter however general or hypothetical, is to take place before or during any hearing before a finding of that a charge has been proved has been arrived at and announced, or in the absence of the tribunal chair.

It is possible that a member of the tribunal may be involved in an inquest or criminal prosecution in which the pathologist is involved. In such cases the following advice should be adhered to.

Whilst the matter is still being considered under the procedures members should not disclose information, even that in the public domain, to those involved in the inquest/prosecution. This will avoid the appearance of using involvement in the Tribunal for personal or professional advantage.

After the conclusion of the matter under the procedures the members should limit any comment to factual information which is in the public domain. Members may have concerns that, in the interest of justice, parties to an inquest or prosecution should be aware of the fact that there is a complaint against the pathologist. The procedures recognise that the interests of justice require appropriate disclosure of this information. Consequently, the fact a complaint is being considered is disclosed to HM coroners and the Crown Prosecution Service.

Appendix 2: The Home Secretary’s Guidance to the PDB on Health Matters

In the event that the PDB becomes aware that a pathologist has been absent from a rota in a group practice on the grounds of (non-maternity related) ill health, the expectation would be that the pathologist be suspended from the register pending a confirmation of medical fitness.

If such absence lasted twelve or more months, the home secretary would consider that prima facie evidence of unsuitability for the register and would, subject to written representations from the pathologist, expect to remove the pathologist from the register.

Version Control

Version Number	Date Approved	Approved By	Brief Description
1.00	01/01/2013	Pathology Delivery Board	First issue of rules under the name Suitability Rules which replaced both the Disciplinary Rules and Guidance.
2.00	13/11/2018	Pathology Delivery Board	Rewrite of rules which adds and subtracts from version 1.00 as well as removing section N.