Double jeopardy faced by doctors

First published in Independent Practitioner Today in November 2022.

2023 – a year of change at the GMC? The council is set to lose its power to appeal fitness-to-practise proceedings. Amie Roadnight reports on a long-running saga that doctors will be delighted to see is about to be resolved in their favour.

Every doctor’s worst nightmare is to receive a letter in the post or an email in their inbox from the GMC informing them that their fitness to practise is being investigated. 

Once the doctor reaches the end of that process having gone through the stress of a hearing, whatever the outcome, the doctor may think it is all over and they can finally move on with their life. Not necessarily. 

Since 31 December 2015, the GMC has been afforded the power to appeal decisions made by a Medical Practitioners’ Tribunal (MPT) in respect of a doctor’s fitness to practise. 

If a decision is made by the MPT that the GMC considers to be too lenient, it is open to the GMC to appeal that decision to the High Court pursuant to s40A of the Medical Act 1983 (as amended) – arguably another bite at the cherry as it were – to secure a more severe sanction on a practitioner’s registration. 

The GMC’s own guidance confirms this is not a decision which should be taken lightly by the GMC and that the GMC will only bring such appeals where it considers the outcome of the MPT hearing is not sufficient to protect the public.  

Its guidance makes it clear that the purpose of the power is only to bring appeals where the GMC have reasonable prospects of success. 

Fitness to practise 

This power has been the subject of controversy and criticism since its introduction. 

An MPT hearing takes place before a professional tribunal of three individuals – medically qualified and non-medical members –  and a legal assessor who is not involved in the decision-making but provides independent legal advice to the tribunal. 

A doctor who is subject to a GMC investigation into his/her fitness to practise goes through a lengthy legal process to defend their position, which, if not disposed of at an earlier stage, culminates in a fitness-to-practise hearing before an MPT panel. 

If the GMC has serious concerns about a doctor’s conduct, it can take interim action against the doctor while awaiting the outcome of the MPT hearing. 

The tribunal firstly considers the facts of the case, which usually involves hearing witness evidence called on behalf of the GMC and the doctor. The MPT then makes a decision on the facts of the case.

If it finds the facts proved, the MPT goes on to consider whether the doctor’s fitness to practise is impaired by reason of, for example, their misconduct, a criminal conviction, their knowledge of English, their health or a finding of impairment by another health regulatory body. 

If a doctor’s fitness to practise is found not to be impaired, the MPT goes on to consider whether issuing the doctor with a warning would be appropriate or whether the case can be closed with no action. 

Should the MPT find the doctor’s fitness to practise is impaired, it will then go on to consider an appropriate sanction, which may be: 

  • The imposition of conditions;
  • Suspending the doctor; 
  • Erasing the doctor from the medical register. 

In the event a doctor is not satisfied with the outcome of the MPT hearing, there is a statutory right of appeal for the doctor to appeal that decision within 28 days of the outcome of the MPT hearing. 

It is also open for the GMC to appeal the MPT’s decision. This is most likely where a registrant is either exonerated or faces a sanction less severe than erasure – such as restricting their licence to practise with conditions or suspension – and the GMC consider the outcome does not sufficiently protect the public or, in other words, it thinks it is too lenient. 

Additional stress

The doctor must then deal with another legal process relating to their fitness to practise. 

This inevitably comes with the additional stress of further legal proceedings, the prospect of a different outcome being reached at the High Court, as well as further legal costs involved in dealing with the appeal. 

It has long been argued that such a power by the GMC is excessive and disproportionate, particularly where other healthcare regulatory bodies, such as the General Dental Council and the Nursing and Midwifery Council, are not afforded the same power of appeal. 

In addition, the GMC’s own regulator, the Professional Standards Authority (PSA), has the right to appeal MPT decisions if it considers a determination is too lenient. 

A query arises as to why it is necessary for the GMC to have such powers when it can be assured that its own independent regulator has the power to appeal decisions to ensure the safety and protection of the public is upheld and public confidence in the profession is maintained.  

Time for change

Fast forward to the start of 2022 and the GMC’s power to appeal MPT decisions remained firmly in place. 

According to information obtained under the Freedom of Information Act by the Medical Protection Society, since June 2018 – that is to say, following the Williams recommendation – the GMC had appealed 23 MPT decisions to the High Court.  

It appears that the council takes the view that while the power to appeal remains on the statute book, it must use it where it considers it to be appropriate – even though the power is discretionary.

The Department for Health and Social Care (DHSC) had indicated some 11 years ago that radical reform to health care regulation as part of the Health and Social Care Bill would be incoming. It had been hoped that these changes would include removal of the GMC’s power to appeal. 

The changes are yet to be implemented, meaning that the GMC’s power remains in place. 

Health Secretary lobbied

In 2021, 13 healthcare organisations wrote to Matt Hancock, Health Secretary at the time, to urge the Government to utilise the Health and Social Care Bill to remove the GMC’s power of appeal. 

In a turn of events, the Govern­ment announced that rather than including the removal of this power using the Health and Social Care Bill, it would do so using secondary legislation when making a number of other regulatory reforms, which it proposed in its March 2021 consultation concerning the Health and Social Care Bill.

The difficulty, however, is that the response to the March 2021 consultation has not, as I write, yet been published. 

It therefore seems inevitable that there will be a further period of lengthy delay before the reforms are introduced and the GMC is stripped of its power to appeal MPT decisions. 

The DHSC has more recently updated the likely timetable to implementation of regulatory reform, which will not see legislation implemented until 2024 at the earliest. 

However, the DHSC has made a commitment regarding the GMC’s power of appeal that the legislation will be laid next year to remove this power and will not be delayed further. 

This will be welcome news to doctors and healthcare organisations who finally, after years of uncertainty, now have the commitment from the DHSC that they have been waiting for. 

It remains to be seen whether this commitment will be met, but there can be no doubt that doctors and healthcare organisations will be hot on the heels of the DHSC if this commitment does not come to fruition in 2023. 

If you are facing fitness-to-practise proceedings or other proceedings before a regulator, whether that be the GMC, Performers List, or Care Quality Commission investigation, and you require legal advice, do make contact with me.