Information on Motions to Close a Hearing

1. Who decides whether a hearing should be closed?

The adjudication tribunal decides whether a hearing, or part thereof, should be closed to the public, applying the statutory test set out in section 41(3) of the Medical Act, 2005.

2. Statutory provisions

Section 41 of the Medical Act, 2005 provides:

41. (1) Where a complaint has been referred under paragraph 39 (3)(b), an adjudication tribunal shall hear the complaint.

(2) The parties to a hearing are the college and the respondent and a party may be represented by his or her counsel at a hearing.

(3) A hearing shall be conducted in public but an adjudication tribunal may exclude the public from a hearing, or from part of it, where it considers the desirability of protecting a party to the complaint or another person against the consequences of possible disclosure of personal matters outweigh the desirability of holding the hearing in public.

3. Process for raising issue of closing a hearing

The College, or the respondent medical practitioner, as parties to the hearing, have standing to bring a motion, to be decided by the adjudication tribunal, to close a hearing . Such a motion may be brought prior to, or after, the commencement of the hearing.

4. In what circumstances may a motion to close a hearing be considered?

a.  In some cases, it may be anticipated that the hearing may involve disclosure of personal matters of a complainant or other person. The College may then consider whether to bring its own motion to close the hearing, bearing in mind the statutory test thatthe desirability of protecting a party to the complaint or another person against the consequences of possible disclosure of personal matters by closing the hearing must outweigh the desirability of holding the hearing in public.

b. In some cases, the respondent medical practitioner may bring a motion to close the hearing. The same statutory test applies to such a motion by the respondent medical practitioner.

5. What does it mean to close a hearing?

a. If the hearing is entirely closed, no members of the public or media will be permitted access to the hearing room while testimony is given or counsel submissions on the complaint are made.

b. The adjudication tribunal may be asked, as a preliminary matter, to decide whether even the motion to close the hearing should be closed to the public, because the motion itself may disclose sensitive personal information.

c. Public notice will be given of an adjudication tribunal’s decision to close a hearing.

d.  In some circumstances, it may be appropriate to close only a portion of a hearing, if the adjudication tribunal is only satisfied that some of the evidence to be heard is of a sensitive personal nature and if it is satisfied that it will be reasonably possible to predict in advance when sensitive evidence is likely to be heard or referred to in the course of the hearing.