Does the new GMC power mean double jeopardy for doctors?

15 January 2016

The Medical Practitioners Tribunal Service (MPTS) was set up in 2012 to run all hearings where a doctor’s performance or conduct has been called into question. The MPTS was set up to separate the investigation and adjudication functions of the General Medical Council (GMC). Therefore, the MPTS makes independent decisions and operates separately from the investigatory role performed by the Fitness to Practise arm of the GMC.

In March 2015, the UK Parliament approved a Section 60 Order amending the Medical Act 1983. The Order allows the GMC the right to appeal to the High Court if it considers that decisions made by the MPTS are too lenient. This will apply to hearings concluding on or after 31 December 2015.

Prior to the changes, a decision made by a committee of the MPTS was final so far as the GMC were concerned. However, the Professional Standards Authority (PSA), responsible for overseeing the UK’s healthcare professional regulatory bodies, could consider referring cases to the relevant court if they felt a review was warranted. The new power means the GMC will be able to appeal against MPTS decisions that, in its opinion do not sufficiently protect the public.

The British Medical Association (BMA) opposed the new powers on the basis that it would expose doctors to an unnecessary risk of double jeopardy. 

Given that the MPTS was set up to separate the GMC’s functions and promote independence of the adjudication process, the GMC’s Section 60 Order seems to somewhat undermine  the underlying purpose of the MPTS.

Whilst doctors always face the possibility that the PSA will appeal a decision of the MPTS on the basis that it is too lenient, the PSA is clearly independent of the GMC, and does not use its power lightly. Six decisions have been challenged by the PSA in the past three years, with the majority resulting in more serious outcomes following agreement between the parties.

It is yet to be seen what type of cases the GMC will appeal, but it leaves open the prospect that the power could be used to challenge decisions which the GMC simply does not agree with. Whilst it is not to suggest that the GMC will use its power in an arbitrary fashion, one must question why the GMC views that it requires the power at all, given (1) members of the MPTS are trained professionals who are well versed at making decisions in relation to fitness to practise cases and are advised by a legal assessor (2) the PSA’s role in overseeing statutory bodies that regulate health and social care professionals in the UK.

Doctors who have faced what is a difficult, but necessary process, should be able to rest assured that the decision of the MPTS is final, barring intervention from the PSA.

Further information

For further information, please contact Diva Shah, Shannet Thompson, or visit our Defending regulated professionals pages.

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