Fitness to practice - all change for the GMC regime?

14 April 2015

What does the future hold for the General Medical Council's (GMC) fitness to practice regime? Julie Norris, partner at Kingsley Napley, comments on proposals for reform and says the efficacy and impact of the new measures will remain unknown for some time.

Original news

General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015, LNB News 29/01/2015 154

The independence of decision-making at the adjudication stage of fitness to practice procedures involving doctors by establishing the Medical Practitioners Tribunal Service (MPTS) in statute is enhanced and protected. A new overarching objective for the GMC is also introduced.

What changes will this order introduce?

The General Medical Council (Fitness to Practise and Over-Arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015, SI 2015/794 (the Order) will introduce significant changes to the operation of the GMC's fitness to practise regime, namely by:

  • placing the MPTS on a statutory footing
  • introducing a new over-arching objective for the GMC
  • modernising the MPTS' adjudication function, including strengthening the case management arrangements
  • amending the Professional Standards Authority for Health and Social Care's (PSA) grounds for referring final fitness to practise decisions to the High Court for consideration, and
  • providing the GMC with the power to appeal final fitness to practise decisions of the MPTS on the same grounds

Why was reform of the GMC's adjudication function deemed necessary?

The independent adjudication of fitness to practise concerns against doctors has been on the GMC's medical adjudication reform agenda since the fifth report of the Shipman Inquiry and the aborted establishment of the Office of the Health Professions Adjudicator (OHPA). To that end, the MPTS was established in 2012 as an independent arms-length adjudicatory body, with the function of determining issues concerning doctors' fitness to practise. By establishing the MPTS as a statutory committee of the GMC and allowing the GMC the right of appeal against decisions made by MPTS committees, the GMC is able to further strengthen its accountability and reinforce its independence. An increase in public confidence is hoped to follow.

The changes to the over-arching objective (establishing a new primary objective of public protection, with general objectives sitting beneath it, to: maintain public confidence in the profession, maintain proper professional standards and conduct and protect the health, safety and well-being of the public) were foreshadowed in the Law Commission's draft bill on the regulation of health and social care professionals (the Regulation of Health and Social Care Professions etc Bill).

Although the Bill did not make it onto the parliamentary agenda, many of the nine health and social care regulators it concerns have embraced both the letter and spirit of the reforms proposed therein and have taken them forward separately. The 'public protection duty' is universally considered to be of such significance to the work of the GMC that its elevation to the paramount, over-arching duty through the Order was considered necessary to ensure that it is consistently considered when decisions about a doctor's fitness to practise are taken.

How will this affect the fitness to practise process in practice?

For doctors facing a fitness to practise complaint, it is likely to be the GMC's power of appeal that represents the most significant change introduced by the Order. The decision of a committee of the MPTS, previously a final decision so far as the prosecution (GMC) were concerned, but for the limited power of review of the PSA, is now vulnerable to challenge by the GMC in the Administrative Court. Of the other new powers to be given to the MPTS, there are three that will have an immediate impact on the conduct of proceedings:

  • the power to award costs against a doctor
  • the power for a committee to draw an adverse inference from a doctor's failure to account for himself, and
  • the power of a committee to refuse to admit evidence following a party's failure to comply with rules or directions

Each of these measures is controversial--views as to the necessity of their introduction and fairness in their operation depend on which side of the fence one sits.

The express inclusion of the general objective of the 'maintenance of confidence in the profession' may lead to a widening of the scope of investigations against doctors; regulators must be careful not to fall into the trap identified by the Law Commission of straying too far away from clinical matters so as to 'inappropriately [impose] moral judgments in essentially private matters under the guise of maintaining confidence'. The Law Commission's recommendation that regulators and fitness to practise panels should consider carefully regulatory interventions which do not 'take some colour from the need to protect the public' becomes all the more pertinent with the introduction of the new general objectives in the Order.

What issues will remain for those dealing with fitness to practise hearings?

The efficacy and impact of the new measures will remain unknown for some time; we must wait until they have embedded and until the dust settles on the inevitable challenges that are brought (particularly against the use of adverse inferences, costs and the refusal to admit evidence) before we know what the next step in the direction of travel of the GMC will be.

This article first appeared on LexisPSL Corporate Crime in April 2015.

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