The British Medical Association (“BMA”) have recently raised concerns surrounding the Government’s change in approach on removing the General Medical Council’s (“GMC”) Section 40A Medical Act 1983 right of appeal.
By way of background, since 2016, the GMC has had a right to appeal a decision of the Medical Practitioners Tribunal Service (“MPTS”) where they consider the sanction imposed upon the practitioner was insufficient to protect the public. Since imposition, this has been the source of much controversy, with leading cases such as Jagjivan and Raychaudhuri in which the court explored the limitations of the GMC’s S40A jurisdiction.
How the GMC’s S40A Power Works
The GMC’s S40A power is contained within the Medical Act 1983. It allows the GMC a limited right of review and only in circumstances where a sanction imposed by the MPTS is insufficient to protect the public:
40A. Appeals by General Council
(1) This section applies to any of the following decisions by a Medical Practitioners Tribunal—
- a decision under section 35D giving—
- a direction for suspension, including a direction extending a period of suspension;
- a direction for conditional registration, including a direction extending a period of conditional registration;
- a direction varying any of the conditions imposed by a direction for conditional registration;
- a decision under paragraph 5A(3D) or 5C(4) of Schedule 4 giving—
- a direction for suspension;
- a direction for conditional registration;
- a decision under section 35D—
- giving a direction that a suspension be terminated;
- revoking a direction for conditional registration or a condition imposed by such a direction;
- a decision not to give a direction under section 35D;
- a decision under section 41 giving a direction that a person’s name be restored to the register;
- a decision not to give a direction under paragraph 5A(3D) or 5C(4) of Schedule 4.
(2) A decision to which this section applies is referred to below as a “relevant decision”.
(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—
- to protect the health, safety and well-being of the public;
- to maintain public confidence in the medical profession; and
- to maintain proper professional standards and conduct for members of that profession.
Although the GMC’s S40A power is lawful, practitioners have long raised concerns over the fact that when pursuing fitness to practise investigations and appeals, there have been suggestions of bias. These concerns are grounded in data that shows that ethnic minority practitioners are twice as likely to be referred to the GMC than a white counterpart.
The PSA’s Right of Appeal
As well as the GMC’s S40A power, the Professional Standards Authority (PSA), as the overarching ‘regulator of the regulators’ in the health and social care sector, has had a power of appeal since it was incepted in 2003. Many consider that the PSA’s appeal power is sufficient, and at arm’s length, therefore making the GMC’s s40A power draconian and surplus to requirement. As an aside, it should be noted that S40B allows the PSA to become a party to the GMC’s S40A appeal – it can also take over an appeal if it sees fit.
Since the enactment of the GMC’s S40A power in 2016, the GMC have used their right of appeal 60 times, with 41 of these appeals being allowed in the GMC’s favour. The Williams review found that the PSA, in the years 2015 – 2018 made only 30 appeals across all 9 of the regulators it oversees, whilst the GMC made 25 appeals in the same period. Of the 25 cases appealed by the GMC in the period 2015 – 2018, only 2 were unsuccessful.
Recommendations for a Single Right of Appeal
Two Government commissioned reviews, the Williams and Hamilton reviews, each touched upon the GMC’s S40A powers. Both reviews made recommendations that it should be removed, with the PSA retaining its right of appeal.
The Williams review, published in 2019 primarily dealt with gross negligence manslaughter in healthcare. However, as part of its investigation into the topic, it touched upon the GMC’s S40A powers. It found that respondents felt that the GMC had used its right of appeal excessively with the intention of seeking to make case law, rather than to protect public safety.
Given the high success rate of S40A appeals, the Williams review considered this demonstrated a proportionate approach to the exercise of the power, indicating that the appeals improved patient safety. However, the PSA stated that of the 25 appeals brought by the GMC, it would not have taken forward 9, with the High Court upholding 4 of those appeals flagged by the PSA. This will be in part due to the fact that the PSA reviews decisions across 9 regulators, thereby giving it a wider overview, which could be said to allow for a fair and consistent approach.
Striking a balance throughout its findings between the arguments in favour and against maintaining the GMC’s S40A powers, the Williams review nevertheless made the clear recommendation that the GMC’s S40A powers should be removed.
The Williams review was then followed by the Hamilton review in 2019. The review also explored gross negligence manslaughter in the healthcare professions. The Hamilton review stated that it fully agreed with the recommendation in the Williams review for the GMC to lose their power to appeal. At the time of the review’s publication, the Government had elected to remove the GMC’s powers of appeal under S40A. The GMC at the time had acknowledged and accepted that it would lose its right of appeal.
In 2022, the Government stated that it was still intending to remove the GMC’s right of appeal after agreeing with the recommendations made in the aforementioned reviews. However, in 2026, the Government starkly changed its position, launching a consultation that proposed retaining the right of appeal for the GMC.
The Mann Review and the Government’s GMC Consultation
In June 2026, the Mann review was published, exploring antisemitism in the NHS. The review also discussed the status of S40A. It recommended that the GMC keep its power of appeal, as well as proposing that the PSA and the GMC should have a right of appeal against a fitness to practise panel’s interim registration measure decision to the High Court.
This stood in stark contrast to the previous reviews’ recommendations to remove the power. The Mann review stated that since the Williams Review, the GMC have worked to set out more clearly the process followed when using their appeal powers, as well as working to address bias in fitness to practise processes. These changes resulted in the new recommendation, which the Government has agreed to implement, publishing its consultation on reforming the GMC in March 2026 to close in late July 2026. As of July 2026 the consultation is still open and will have closed on 21 July 2026, with a response from the government setting out their findings expected in the coming months.
In response to the Government’s updated position, the BMA have announced their intentions to issue a legal challenge in the form of a judicial review, recently publishing their letter before action. The BMA have taken issue with the Government’s decision to publish a consultation on various points, including the GMC’s right of appeal, stating that it is based on recommendations taken from the Mann review, prior to the actual publication of the review.
What’s next?
At present, it is unclear whether the BMA will proceed with their claim for judicial review, or if the Government will take steps to resolve the outstanding issues highlighted by the BMA. This has created uncertainty amongst healthcare professionals who are unclear of the future of the GMC’s right of appeal.
Registrants have expressed a preference for the PSA’s overarching supervisory status of the 9 healthcare regulators, allowing it to exercise discretion and consistency in the appeals it decides to take forward. However, for there to be any change to the S40A regime, it must occur through a parliamentary process, as it is a statutory power, that is otherwise exercised entirely lawfully.
We shall be watching the development of this topic.
About the authors
Shannett Thompson is a Partner in the Regulatory Team and is the firm’s Training Principal. She trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors.
Sam Binymin is a Senior Paralegal in the Regulatory team, assisting on cases relating to defending accountancy and legal services professionals.
