Acting to stop harm: the FCA and Appointed Representatives
Parliament has approved changes to the law to give the General Medical Council (‘GMC’) the right to appeal to the High Court if it considers that decisions made by the Medical Practitioners Tribunal Service (MPTS) are too lenient.
The GMC has been pushing for this power since it gave its adjudication function in fitness to practise cases to the operationally independent MPTS. In several recent cases the GMC has said that it would have appealed against decisions if it had had the power to do so.
What powers of appeal were there previously?
Prior to the introduction of this new power a decision made by a committee of the MPTS was a final decision so far as the GMC were concerned, but for the limited power of review of the Professional Standards Authority (PSA).
The PSA oversees regulators of health and care professionals. It reviews all final decisions made by the regulators’ fitness to practise committees and can refer those decisions to the High Court if it considers that they are unduly lenient and do not protect the public. The PSA uses this power infrequently.
What is the new power?
The new power means the GMC will be able to refer decisions that, in its opinion, do not sufficiently protect the public. In assessing this, the GMC will take into account public health and safety, the need to maintain public confidence in the profession and the upholding of proper professional standards. There is a danger that these powers will be relied upon too frequently and the GMC may be able to justify their actions by an overreliance on the subjective and rather nebulous concept of ‘the maintenance of public confidence in the profession’.
What could this mean for doctors in practice?
The British Medical Association (BMA) opposed the new powers on the basis that it would expose doctors to an unnecessary risk of double jeopardy (in criminal law, this means being tried twice for the same offence). It is yet to be seen what types of cases the GMC will appeal but it leaves open the prospect that the power could be used to tinker with sanctions or decisions which the GMC simply do not agree with.
The Medical Protection Society (MPS) called the GMC’s power of appeal ‘unfair to doctors’. The initiation of a GMC appeal will leave the respondent doctor in an uncertain position until the appeal has been heard. We know that these proceedings bring with them a substantial amount of stress; our clients tell us that any further delay for an appeal will have a serious impact on their health and wellbeing. Many of our clients are self-funded; the prospect of having to finance a fresh set of proceedings in the High Court may not be one that many doctors (often with families and without an income stream) could countenance.
The GMC’s FTP process has been subject to much recent scrutiny. A new study concluded that it “may do more harm than good” based on the negative effect on doctors’ mental health and the overtreatment of patients. The lead author of the study reported that psychological pessimism increases as the ‘complaints pyramid’ is ascended. Having an additional tier to the complaints pyramid could exacerbate the problems which this report has already evidenced.
All of this leads one to wonder what the real impact of the GMC’s new power of appeal will be. The PSA already has the power to challenge unduly lenient decisions; is this new right of appeal simply giving the GMC a second bite of the cherry?
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