‘De-risking’ and financial exclusion
The Medical Practitioners Tribunal Service (MPTS) hears cases against doctors alleged to have seriously breached GMC standards. As stated on its website, the MPTS ‘provides a hearings service that is fully independent in its decision making and separate from the investigatory role of the GMC’. As part of the hearings process, when a doctor’s fitness to practise is found to be impaired, the GMC makes submissions on sanction which details the sanction the regulator considers to be appropriate in protecting the public and/or preserving public confidence in the profession (public interest). The GMC’s submissions aside, it is the MPTS that has the power to determine which sanction to impose against the doctor’s registration.
In December 2015 the GMC was given the power to challenge decisions of the MPTS by way of amendment of the Medical Act 1983 (the Act). Section 40A of the Act meant that the GMC was able to appeal where it did not consider that the decision adequately protected patients; in short, where the GMC felt the sanction was unduly lenient.
The first case to be heard using that power was that of the GMC v Jagjivan in May 2017. Since then the GMC has launched a further 24 appeals, including that of Dr Bawa-Garba, the case that has sent shockwaves through the medical profession. These appeals have sought stricter sanctions or to block a doctor being registered to practise in the UK.
To date, the GMC has been successful in its appeals against the decisions of the MPTS for 12 out of the 14 doctors’ whose appeal reached the High Court. Where the appeals have related to allegations of impaired fitness to practise, the GMC’s success rate is 100 per cent. Six doctors have been struck off following High Court rulings.
Before the GMC was provided with the power to appeal, responsibility for considering the decisions of the MPTS fell to an independent body, the Professional Standards Authority (PSA). The PSA remains the watchdog responsible for overseeing the UK’s healthcare professional regulatory bodies. In the three years prior to the change, the PSA challenged only six decisions. Notably, the PSA have only joined three of the GMC’s 25 appeals.
Whilst the GMC’s view is that the statistics highlight that they are correctly and lawfully applying the criteria for requesting an appeal, questions have been posed about the impact this power has had on doctors and the role of the MPTS.
The fitness to practise process can be an unclear, daunting and stressful experience for a doctor. Many have been under scrutiny for a considerable period of time, often before the GMC’s process, for example locally within the hospital in which they work, or by the police. Now, with an increased prospect of their sanction being challenged not only by the PSA but also the GMC, some may fear that the process is not necessarily concluded with the MPTS decision. This leaves the doctor facing further uncertainty.
What’s more, doctors facing fitness to practise allegations can incur considerable expense in defending their case, during which time that they may not be able to work. This is compounded if they need to continue this defence to the High Court to fight the imposition of a stricter sanction. Whilst appeals are an integral part of our legal system, these specific appeals have the potential for greater impact on doctors.
Despite the level of success in appealing the decisions, the high number of appeals and the disparity between the action the GMS has taken since receiving its powers and the level of appeals previously launched by the PSA, one must question whether the approach is overzealous. Whilst the high volume of appeals may simply be a reflection of a settling in period, continued reviews of the MPTS’ decisions ultimately undermines its authority and independence, which damages trust in the Fitness to Practise process.
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