A preliminary hearing allows the parties (the NMC and the registrant) to deal with legal points before the actual substantive hearing takes place. This means that the hearing itself should be able to proceed more efficiently. The meeting will usually involve a decision maker (usually an independent panel member) who receives legal advice from a Legal Assessor, the case lawyer on behalf of the regulator and then the registrant, or the registrant’s representative if they have one.
Some of the things that might need to be decided at a preliminary meeting are:
- whether the charges are properly drafted, in accordance with any general guidance that the regulator has set out
- whether or not parts of the hearing should take place in private, for example because they relate to personal issues such as a registrant’s health
- whether or not certain evidence is ‘admissible’ – so whether according to legal principles or the fitness to practise framework they should be seen and considered by the panel
- whether or not a witness statement is admissible if a witness cannot attend the hearing or refuses to do so
- whether or not the panel can require the attendance of a witness
- whether or not the panel can require the regulator to obtain evidence on the registrant’s behalf
- whether there should be an adjournment or delay
- whether or not the case should continue to a hearing
- whether or not the hearing can be held remotely or in person
A preliminary meeting is not a full hearing of the facts – it just deals with procedural points where the parties do not agree. Legal arguments will usually need to be supported with relevant case law (also referred to as ‘authorities’), meaning cases which have previously been heard in the courts, where the outcome can then be relied upon as a principle that other panels and regulators must follow. Although the Legal Assessor will be able to advise the decision maker, it is important to be able to set out your arguments and authorities clearly so that everyone in the meeting can understand what you want to achieve and why you think you are entitled to that outcome. You should also consider what the regulator is likely to say in response and how they might use case law and any legal principles to counter your arguments.
The advantage of having a lawyer involved in the process is that preparation for the preliminary meeting will be taken care of for you. A specialist fitness to practise lawyer will have insight into the relevant legal principles and is likely to know a lot of the relevant and useful case law and how it can or should be applied. Your lawyer will also be experienced as an advocate, able to explain your case to the decision maker and answer any questions that arise.