The GMC will be stripped of its power to appeal against decisions made by the MPTS following recommendations from a government review commissioned following the proceedings of Dr Bawa-Garba.
On 13 August 2018 the Court of Appeal overturned the High Court’s decision to remove Dr Bawa-Garba from the medical register following her successful appeal. Our full blog on this decision can be found here.
This case, avidly followed by the medical profession, sparked controversy, particularly in relation to the General Medical Council’s (GMC) use of its power under section 40 of the Medical Act 1983, to appeal the Medical Practitioners Tribunal (MPTS) decision to suspend Dr Bawa-Garba which subsequently led to her erasure. Not only did this decision cause widespread alarm amongst the medical profession but it undermined the role of the MPTS and left the perception of a risk of double jeopardy following fitness to practise proceedings.
In response to those fears, Jeremy Hunt, former Secretary of State for Health and Social Care, initiated a rapid policy review into gross negligence manslaughter in healthcare settings. The review, led by Professor Norman Williams, recommended a number of changes in the regulation of healthcare professionals including the removal of the GMC’s power to appeal the fitness to practise decisions of the MPTS. The review held:
‘On balance it was felt that removing this right was appropriate. Such action will hopefully mitigate the distrust felt by doctors about their professional regulator, while maintaining effective public protection through the Professional Standards Authority's (PSA) right of appeal.’
Dr Chaand Nagpaul, British Medical Association, (BMA) chair, welcoming the review, commented:
‘The BMA has long-opposed the right of the GMC to appeal fitness-to-practise decisions. We know that doctors going through this process find it stressful enough, in many cases leading to anxiety and depression, without the added worry that any decisions made by the MPTS can be overridden by the GMC taking the case to a higher court. Therefore, we are glad to hear the Secretary of State announce that the regulator will no longer have this right. Removing this right brings arrangements for doctors in line with that of other healthcare professionals, where this responsibility rests with the Professional Standards Authority.’
The government has welcomed the review findings but the GMC has expressed ‘surprise’ commenting that if the recommendation for removal is pursued ‘it will significantly reduce’ their ability to protect patients.
So why did the review make this recommendation?
Currently the GMC is the only UK health regulator that has such a right of appeal. Although the MPTS provides a hearings service that is fully independent in its decision making and separate from the investigatory role of the GMC, it is a statutory sub-committee of the GMC, is funded by the GMC and is accountable to the GMC Council. For all intents and purposes it is still a part of the GMC.
The review heard that this had led to a growing perception amongst doctors that the GMC is ‘in effect appealing against itself’ and having two opportunities to present its case- ‘first in putting its case for sanction to the MPTS and then appealing the MPTS decision if it doesn’t ‘agree’ with the GMC’s recommendation’.
Is this perception unfounded?
The GMC has had the power to appeal MPTS decisions since 31 December 2015. As of April 2018, the GMC has appealed 25 MPTS decisions where the sanction imposed was lower than that recommended. In contrast, the Professional Standards Authority (PSA) has appealed 30 decisions across all nine regulators during the same timeframe. Evidently therefore, the GMC has exercised its power of appeal proportionately more often than the PSA. Interestingly however, of the 25 cases the GMC has appealed, only two have been unsuccessful which appears to indicate their use of this appeal power is not excessive.
Whilst the figures indicate that the GMC has not misused its powers of appeal, surely the priority, following the conclusion of Bawa-Garba and the distrust this caused between medical professionals and their regulator, should be to promote a fair, consistent approach to regulation which encourages confidence in the system. Why should doctors be subject to two appeal decisions where all other healthcare professionals are only subject to one? Why should the GMC have an opportunity to appeal what is effectively its own decisions? And would anything be lost were the GMC to have this power removed? The answer to that is ‘no’: the PSA has and will continue to have the power to refer fitness to practise decisions to the High Court where it has concerns about public protection.