The Divisional Court handed down judgment in the case of General Medical Council v Jagjivan.
This is the first occasion in which the Court has dealt with an appeal by the General Medical Council (GMC) against a decision of its own Medical Practitioners Tribunal (MPT) under s.40A of the Medical Act 1983. That power came into effect in December 2015 and it broadly mirrors the existing power of the Professional Standards Authority (PSA) to refer decisions of the MPT to the High Court.
It should be noted that the GMC also has a power to appeal decisions to grant applications for restorations.
In anticipation of the judgment’s publication, we briefly review the GMC’s use of the s.40A power since its introduction. Publicly available records demonstrate that the power was not used in the first nine months. In September 2016 three appeals were issued by the GMC. The total had risen to eight by early March 2017. We understand that current total is in the region of 12.
In 2016 the PSA reviewed more than 3,000 fitness to practise decisions made by the nine health and social care regulators. It referred 14 decisions to the High Court in 2015/16. The PSA appeals 0.4-0.5% of the decisions which it reviews following notification by the regulator. Publicly available statistics for the MPTS indicate that between 2012 and 2015 the average number of fitness to practise determinations per annum was 228. On average there were 63 cases of erasure. Decisions to erase fall outside of the s.40A power. Thus the early indications reveal an appeal rate under s.40A which is in the region of 5%, ten times higher than the PSA’s appeal rate. That stark difference raises interesting questions about the way in which the discretionary power to challenge decisions is exercised, and what accounts for the apparently stark contrast. One possible explanation may be that the GMC and the PSA attach different weight to assessments of the prospects of success when determining whether to challenge a decision.
The Medical Practitioners Tribunal Service (MPTS) which was launched in June 2012 now describes itself as ‘the adjudication function for UK doctors’. The separation between the MPTS and the GMC is operational. The MPTS is not independent of the GMC.
In appeals brought by the PSA, the GMC is answerable for the decision-making of the MPT, although the registrant is entitled to participate in the appeal. In contrast, neither the MPT nor the GMC play any role in defending the MPT’s decision when the GMC appeals that decision. With that in mind, it may strike many registrants as curious that it is left to the registrant to defend the MPT decision with all of the attendant costs risks and, that if the MPT’s decision is quashed they are likely to confront further expense in defending themselves before the MPT a second time. It might be felt that where a public body contends that a tribunal, for which it is responsible, has erred in a manner which requires correction, the public body should bear the costs of that challenge. A registrant who had incurred considerable expense in defending their case before the MPT would understandably ask why they should not be reimbursed those costs if a finding that the MPT was in error, requiring the matter to be remitted for rehearing.
The decision in this case will be the first of many in the coming months. It remains to be seen whether these cases will lead to any significant change to the principles established in the context of PSA appeals. However, we anticipate that the rate at which the GMC appeals decisions under s.40A will be the subject of greater scrutiny as this jurisdiction develops, as will the way in which the issue of costs is dealt with in these appeals.