One of the more difficult procedural questions I am asked to advise upon as a legal assessor is whether a regulatory panel should proceed with a final hearing when the respondent professional is neither present nor represented.

The terminology varies between regulators. The person concerned may be a member, registrant, practitioner or respondent. The decision-making body may be a disciplinary committee, fitness to practise panel or professional conduct tribunal. The precise procedural rules also differ. However, the underlying challenge is broadly the same.

A registrant facing serious professional allegations ordinarily has a right to attend, to be represented, to question witnesses and to present their own case. At the same time, regulatory proceedings cannot necessarily be brought to a halt simply because that person does not attend.

I don’t tell the Panel what decision to make. The decision belongs to the panel. My task is to identify the correct legal framework, explain the relevant principles and assist the panel to reach a fair, reasoned and defensible decision on the particular facts.

A decision that must never become routine

There are good reasons why panels must approach proceeding in absence with caution.

A final regulatory hearing can have serious consequences. Depending upon the regulator and the allegations, the panel may ultimately impose a warning, restriction, suspension or erasure from the relevant professional register. Findings of dishonesty, lack of integrity or serious professional misconduct may affect a person’s livelihood and reputation for many years. The finding may become a part of other litigation.

The absence of the registrant may also affect the quality of the evidence available to the panel. There may be no one present to challenge the regulator’s witnesses, identify weaknesses in the evidence or explain documents that appear damaging when viewed in isolation. The panel may lose an opportunity to assess the registrant’s account directly.

However, caution does not mean that an adjournment is automatic. The courts have repeatedly recognised the public interest in the effective and timely resolution of professional disciplinary proceedings. All stakeholders have an interest in the case being concluded expeditiously. Delay can affect memories, increase costs and undermine confidence in regulation.

The panel must therefore balance competing considerations. Fairness to the absent registrant is of prime importance, but it is not the only consideration.

My starting point: what do the regulator’s rules require?

Before considering the wider circumstances, I begin with the regulator’s own statutory framework and procedural rules.

Although the wording differs, rules permitting a hearing to proceed in absence commonly require a panel to be satisfied that notice has been properly served or that reasonable steps have been taken to notify the registrant. The rules may then require the panel to decide whether it is fair, appropriate or in the interests of justice to continue.

I therefore normally advise a panel to approach the matter in two stages:

1. Has the registrant been given proper notice in accordance with the applicable rules?
2. If so, should the panel exercise its discretion to proceed?

Keeping those stages separate helps to avoid confusion. Proof of service gives the panel jurisdiction to consider proceeding, but it does not dictate the outcome of the discretionary decision.

Stage one: service and notification

The first question is whether the required notice was sent in accordance with the applicable rules.

The panel should examine the notice of hearing, the address or email address used, the date and method of service, and any proof of dispatch or delivery. It should check that the required period of notice was provided and that the notice contained the information prescribed by the rules.

Depending upon the particular regime, proof that the notice was properly sent may be sufficient. Importantly, actual receipt may not be a legal requirement. What happened after the sending may nevertheless remain relevant to the decision.

Evidence of actual knowledge is particularly important. A reply from the registrant, participation in case management, discussion of the hearing date, provision of written submissions or confirmation that the person will not attend may make the position clear.

The Court of Appeal’s decision in General Medical Council v Adeogba; General Medical Council v Visvardis emphasises that regulated professionals bear responsibility for engaging with their regulator and maintaining effective contact details. A regulator must ordinarily be able to use the registered contact details supplied by the professional.

This does not relieve the panel of its duty to examine service carefully. It does mean, however, that a registrant cannot necessarily prevent proceedings by disengaging, failing to check correspondence or neglecting to update their registered address.

Stage two: should the hearing proceed?

Once service has been established, I advise the panel that proceeding remains discretionary. The panel must consider all the circumstances known at the time and exercise that discretion with care.

The criminal case of R v Jones (Anthony) established that a court has power to proceed in a defendant’s absence, but that the discretion must be exercised with great care and with particular regard to the fairness of the trial. Although regulatory proceedings are not criminal trials, the principles identified in Jones have influenced professional disciplinary decisions.

The regulatory context is important. In Adeogba, the Court of Appeal adapted the criminal authorities to professional regulation. It recognised both the duty of professionals to engage with their regulator and the public interest in the efficient disposal of regulatory allegations. Attendance remains fundamentally important, but it cannot always be determinative.

In practice, I invite panels to consider a series of related questions.

Is the absence voluntary?

A clear statement that the registrant will not attend is materially different from a registrant who appears to be absent because of illness, incapacity, an emergency or a genuine communication failure.

The panel should avoid describing an absence as voluntary merely because notice was properly served. It should examine the evidence. For example:

• Has the registrant explained their position?
• Have they explicitly declined to attend?
• Did they previously participate but stop doing so?
• Is there reliable information suggesting that something beyond their control has prevented attendance?

A person may make a deliberate choice not to attend even while continuing to correspond with the regulator. Conversely, silence alone does not always disclose the reason for absence.

Has an adjournment been requested?

If an adjournment has been requested, the panel should identify the grounds and assess the supporting evidence.

Ill health applications must be examined sensitively but critically. A document stating that someone is unfit to work does not necessarily establish that they cannot participate in a tribunal hearing, particularly where remote attendance or other adjustments may be available. Relevant medical evidence should ordinarily explain the condition, why it prevents participation and the likely prognosis.

The panel must not simply reject an application because the medical evidence is not perfect. Equally, it need not accept a general assertion that the registrant is too unwell to attend without considering its reliability and the surrounding circumstances.

Would an adjournment secure attendance?

This is often one of the most important questions. An adjournment should serve a purpose.

If a short postponement allows an acutely unwell registrant to recover, obtain representation or resolve a genuine technical problem, the case for adjourning may be strong.

The position is different where the registrant has said that – for example - they will not participate at any future hearing, insists that the regulator has no authority over them or seeks indefinite delay without identifying when they could attend. In those circumstances, an adjournment may simply reproduce the same issue at a later stage.

The panel should therefore consider not only whether attendance is desirable, but whether there is a realistic prospect that an adjournment will achieve it.

What disadvantage will the registrant suffer?

Proceeding in absence almost always creates some disadvantage. The panel should identify it rather than merely acknowledge it in general terms.

Relevant matters may include whether:

• the registrant is represented,
• they have provided a written response,
• factual allegations are disputed,
• live witnesses will be called,
• credibility is central
• the registrant intended to give evidence.

A documentary case in which the registrant has made detailed written submissions may be different from a case turning upon a direct conflict of oral testimony. The more serious the allegations and potential outcome, the greater the need for the panel to examine the disadvantage carefully.

Tait v Royal College of Veterinary Surgeons illustrates the danger of approaching the discretion too broadly. The Privy Council found fault with advice that the disciplinary committee had an ‘absolute discretion’ and stressed the need to apply the relevant fairness principles carefully.

What are the competing public-interest considerations?

The public interest is not simply an argument for proceeding. It includes both effective regulation and procedural fairness.

The panel may consider the age and history of the case, previous adjournments, the availability of witnesses, the effect of further delay and the need to resolve allegations within a reasonable time. It may also consider the regulator’s obligation to protect the public, maintain confidence in the profession and uphold proper professional standards.

However, public confidence is not served by speed at the expense of justice. A manifestly unfair hearing may damage confidence just as much as avoidable delay. The proper objective is fair, proportionate and efficient determination.

If the panel proceeds, fairness remains a continuing obligation

A decision to proceed does not diminish the regulator’s burden of proving its case. Nor does absence amount to an admission.

I usually advise the panel expressly that:

• it must scrutinise the regulator’s evidence with appropriate care;
• the burden and standard of proof remain unchanged;
• it should distinguish clearly between admitted and disputed matters;
• it should not speculate about why the registrant is absent;
• it should not treat non-attendance as evidence that the allegations are true; and
• it must consider any written evidence or submissions provided by the registrant.

Where witnesses give evidence, the panel may ask appropriate clarifying questions, but it must remain impartial. Neither the panel nor the legal assessor becomes the absent registrant’s advocate.

The panel must also remain alert to a change in circumstances. A new email, medical document, attempt to join remotely or explanation for an unexpected disconnection may require the position to be reconsidered.

Giving adequate reasons

Whether the panel proceeds or adjourns, it should give a clear, structured decision.

The decision should identify the relevant rule, record the evidence of service, summarise the explanation for absence, address any adjournment request, consider whether postponement would secure future attendance and explain how the panel balanced fairness to the registrant against the wider public interest.

A formulaic statement that the panel ‘considered all relevant factors’ is not ideal. The reasons should demonstrate that the panel confronted the particular risks and disadvantages arising in the case before it.

Good reasons are not merely protection against appeal. They are an essential part of fair adjudication. They enable the absent registrant, the regulator and the public to understand why such an important procedural decision was taken.

The legal assessor’s contribution

When I am asked whether a hearing should proceed in absence, I return to three central propositions.

First, the applicable rules must be followed and proper notice established. Secondly, the discretion to proceed must be exercised cautiously, but not on the assumption that absence automatically requires an adjournment. Thirdly, if the panel continues, it must actively preserve fairness throughout the hearing.

The answer will always depend upon the evidence. A registrant who elects not to attend presents a very different case from someone whose participation has been prevented by a real medical emergency. The legal principles provide the framework, but they do not replace careful assessment of the circumstances.

Ultimately, my role is to help the panel ask the right questions, apply the correct test and explain its reasoning. The panel must then reach its own decision, balancing the rights of the absent professional with the regulator’s responsibilities to the public, the profession and the fair administration of justice.

Evan Wright is a partner and barrister in JMW’s professional regulation team. He sits as a legal assessor and represents regulated professionals in conduct investigations and proceedings.