13 January 2023

New Year is a time for making resolutions and commitments and one welcomed commitment is the Department of Health and Social Care’s (DHSC) pledge that by the end of 2023, secondary legislation will be implemented to revoke the General Medical Council’s (GMC) right to appeal decisions of the Medical Practitioners Tribunal Service (MPTS).

The GMC is the regulatory body of medical practitioners throughout the UK. One function of the GMC is to investigate concerns raised in respect of registrants’ fitness to practise.

In 2015, the MPTS was constituted as a separate body to the GMC for the purpose of carrying out fitness to practise hearings. Although the role of the MPTS is separate to the GMC, the GMC is responsible for the funding of the MPTS and the MPTS is still accountable to the GMC Council.

During the creation of the sub-committee of the MPTS, the GMC retained the right to appeal decisions made in relation to registrants’ fitness to practise. Section 40A of the Medical Act 1983 currently affords the GMC a right to appeal decisions of the MPTS to the Court of Session in Scotland, (equivalent to the High Court in England).

The ability of the GMC to appeal decisions of the MPTS is unique in fitness to practise proceedings. The GMC is the only UK health regulator with such a right to appeal. Section 25 of the National Health Service Reform and Health Care Professions Act 2002 also affords the Professional Standards Authority (PSA) a right to refer fitness to practise decisions of nine healthcare regulators, including those related to GMC investigations, to the relevant court where it considers that a decision is insufficient for public protection. The argument for revoking the GMC’s right to appeal MPTS decisions is that the PSA has the same remit.

The Williams Review

The GMC’s appeal of the MPTS decision in the case of Dr Bawa-Garba prompted the function of GMC appeals to be considered in a parliamentary review led by Professor Sir Norman Williams. The MPTS had decided to suspend Dr Bawa-Garba, an outcome that the GMC appealed and which led to the High Court determining that Dr Bawa-Garba should be erased from the register. Dr Bawa-Garba appealed the decision to the Court of Appeal in England. The Court of Appeal determined that the High Court had improperly applied the fitness to practise rules and ultimately referred the decision back to the MPTS.

The Williams Review considered that because the GMC and PSA have powers to determine whether to exercise a right to appeal, this could lead to doctors being subject to two appeal processes where other healthcare professionals are only subject to one. It also considered that the GMC may not achieve an outcome sufficient to ensure public protection due to the way it had presented the case. It would, therefore, be wrong to allow the GMC a right to appeal in such circumstances as it would effectively be providing a second bite of the cherry.

Of notable importance, the panel considered that the medical profession harbours a mistrust towards the GMC which has adversely affected doctors’ willingness to engage with training and reflection provided by their regulator. It was considered that the mistrust is heightened by the fact that the GMC has an additional right to appeal.

In light of the aforementioned points, Professor Sir Norman Williams advised that the PSA should retain their right to appeal a decision of the MPTS and the GMC’s power to appeal decisions of the MPTS should be removed.

Where are we now?

In 2018, Jeremy Hunt accepted the recommendations of Professor Williams in full.

Since then, parliament has been slow to implement legislation in accordance with the recommendations.

However, the DHSC has confirmed that it would prioritise the implementation of legislation to remove the GMC’s power to appeal MPTS decisions in 2023.

The change has been a long time coming but one which will aim to redress the perceived power imbalance between the GMC and medical practitioners in fitness to practise proceedings.

BTO specialise in defending professionals throughout fitness to practise investigations and proceedings. If you have any queries in respect of the fitness to practise process, please do not hesitate to contact us.

Phoebe Crane, Solicitor: pcr@bto.co.uk / 0131 222 2939