They do, but a Tribunal can sometimes draw adverse inferences from that silence.
This issue of the right to silence arose in Dr W’s case who elected not to give any evidence, either written evidence by way of a statement or oral evidence at the hearing. The case involved a potential sexual assault by Dr W against a patient. The criminal law in Scotland (where Dr W resided) is different to the law in England. Scottish Law requires independent evidence to support a complaint and it appears there was none, the DNA evidence was inconclusive. The police in Scotland indicated they would not proceed and there was a risk for Dr W that if he gave evidence in the GMC and MPTS proceedings his right against self-incrimination would be compromised.
On the facts of this case, the Tribunal decided that they would not draw any adverse inferences from Dr W exercising his right to silence. A Tribunal may draw an adverse inference where a prima facie case has been established, a practitioner has been warned an adverse inference might be drawn, given an opportunity to explain their reasons for silence but no reasonable explanation was given. A Tribunal must also ask itself whether there are any other circumstances making it unfair to draw an adverse inference. The Tribunal decided Dr W had a reasonable explanation for keeping his silence and so drew no adverse inference.
Whilst no adverse inferences were drawn the Tribunal did ultimately conclude that the facts against Dr W were proven and erased him from the register. The patient attended with her son who was also a patient, they were examined consecutively. Her son was entirely appropriately examined with proper notes kept. The patient presented with a sore throat and swollen glands. Dr W was said to have put his hands up the patient’s jumper, cupped her breasts, while holding a stethoscope, and asked her to breathe only once. The expert evidence was that examining only the front of the chest was inadequate and neither were any proper notes kept. There was some debate over a condition the doctor suffered and whether with reference to the size of the patient’s breasts there could have been some misunderstanding. The Tribunal however determined that even if that were the case and it was unintentional it is incumbent on a doctor to communicate, apologise and explain why that happened.
In this matter the doctor was not able to give his version of events and it was left to his representative to do his best to disprove the case relying on the other evidence. There will be those cases where silence may safely be maintained but these are exceptional rather than usual. Should you have any concerns about potentially being involved in any GMC investigation please do take advice as soon as possible. The decision what to say and when at any stage of any GMC investigation can have serious consequences. It is important to think strategically and consider all the implications.
