GMC consultation on draft order – taking up the torch of the Law Commission reforms in the absence of government action?

On 31 July 2014 the Department of Health (DoH) published their consultation paper, The General Medical Council and Professional Standards Authority: Proposed changes to modernise and reform the adjudication of fitness to practise cases, the aim of which is to ‘strengthen and modernise the GMC’s adjudication systems’.  Annexed to the consultation document, which poses various questions to those potentially affected by the changes, inviting comment, is the draft Order; The General Medical Council (Fitness to Practise etc.) and the Professional Standards Authority for Health and Social Care (Referrals to Court) Order 2014.   The Order amends the Medical Act 1983 and National Health Service Reform and Health Care Professions Act 2002 to implement the key reforms.

The reforms are said to be designed to increase the separation between the investigation of fitness to practise cases and adjudications, strengthen and modernise the GMC powers and  implement changes to the power of the Professional Standards Authority (PSA) to refer cases to higher courts.

The main proposals

Article 2 provides for a new over-arching objective for the GMC, namely protection of the public.  Their pursuit of that over-arching objective involves the pursuit of three further objectives; to protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession and to promote and maintain proper professional standards and conduct for members of that profession.

The proposed new objectives of the GMC echo the  Law Commission’s, seemingly aborted, proposals to create a new overriding common statutory objective to protect, promote and maintain the health, safety and well-being of the public which was to be buttressed by general objectives to promote and maintain public confidence in the profession and promote and maintain proper professional standards and conduct.

Articles 3 to 5 establishes the MPTS as a statutory committee of the GMC to strengthen the separation of functions , and places fitness to practise and interim orders tribunals under the administrative control of the MPTS. Those tribunals are to have regard to the over-arching objective in the exercise of their functions.        

Article 6 deals with the powers of review of fitness to practice committees.  It introduces a provision to ensure that reviews can be carried out before the expiry of sanctions and to enable reviews without a hearing if both parties agree.  Article 7 provides the same for reviews of interim orders. Article 8 introduces an overriding objective of procedural rules, namely to secure that cases are dealt with fairly and justly.

Article 9 makes provision for case management and paves the way for negative consequences if parties do not comply with directions of either the tribunal or the case manager; namely refusing to admit evidence, the drawing of adverse inferences and costs.  Further, there is provision for the possibility of wasted costs orders if a party has behaved unreasonably.

Article 10 confers express power to provide for rules relating to undertakings and for the procedure to be followed where they are breached and/or require review.

Article 11 makes provision for requirements for registrant’s to undergo physical or mental health assessments and in the absence of their compliance, for that non-compliance to be considered by the MPTS who can direct that they are suspended or that their registration is conditional upon the person’s compliance with the assessment.   Article 12 does the same with regard to English language assessments.

Article 14 provides for the MPTS to appoint legal assessors and case managers in FTP proceedings.

Article 16 provides the MPTS with a power to require practitioners to provide information as part of investigations (subject to certain exceptions) and to impose suspension or conditional registration in the event of non-compliance.

Articles 18 and 19 introduce a power for the GMC to bring appeals against decisions of the fitness to practise committees, which will run alongside the power of the PSA to refer under s29 of the national Health Service reform and Health Care Professions Act 2002. This situation was again prefaced by the Law Commission’s proposals.

Provision is made so that there can only be one such appeal or referral and for one or other body to resume abandoned appeals by the other.  The PSA may refer the case if they consider that the decision is not sufficient for the protection of the public, including a consideration of the other objectives outline in Article 2 (which is the same as the grounds applicable to the GMC). 

The proposals in respect of the PSA serve to amend s29(4) of the National Health Service Reform and Health Care Professions Act 2002 and by so doing amends the grounds for referral as it applies to all health care professionals and social workers in England. This situation was envisaged by the Law Commission’s proposals but it will be interesting to see if it is feasible outside the complete overhaul of the regulatory system the Law Commissions draft Bill would have achieved.

Article 25 makes provision to ensure a direction for suspension or conditional registration will continue in effect during an appeal against a review decision which extends its effect until the final outcome of  that appeal takes place.

Perhaps the most interesting of the developments above are the changes to referrals by the PSA, an attempt to create unified referral system on the basis of the objective identified in the Draft Order, and  the indication that adverse inferences and/or wasted costs may be appropriate in some cases, a marked contrast to the current position where, with an rigid adherence to principle lacking even in criminal prosecutions, it is the regulator who must prove their case. 

The DoH state that they are drawing on the work undertaken by the Law Commission in their review of the law governing the regulation of health professionals, and it is clear that they are.  Much of the draft Order is a rehearsal of the draft Bill.

As we recorded in our July Press Round-up all the major regulatory bodies expressed their disappointment when the Law Commission’s draft Bill failed to appear in the Queen’s Speech. It may be that the regulators have grown tired of  being beholden to the Government’s legislative programme and will now independently take steps towards the reforms they see as needed.  If other regulators choose to follow the GMC’s course between the Law Commission’s draft Bill and the GMC’s draft order they have an effective blueprint for doing so. 

The closing date for the consultation is 25 September 2014.