A guest blog from Joanna Jervis, a Senior Lawyer and Practice Development Manager for the Medical and Dental Defence Union of Scotland (www.mddus.com) looking at fitness to practise from the registrant’s perspective. Joanna also explains how the Authority’s current power to appeal regulators’ final fitness to practise decisions provides a failsafe mechanism that adds to public protection.
All those involved in administering the regulatory process, including the consideration of appeals, need to be mindful of the impact of these proceedings on the health and wellbeing of the registrant.
By the time the registrant reaches a hearing before a fitness to practise panel, they will already have been through a protracted and stressful process. The latest available data for the General Medical Council (GMC) suggests that it takes an average of 80 weeks from receipt of a complaint to a final hearing. The registrant therefore lives with the stress and anxiety associated with fitness to practise proceedings for a prolonged period, all the while aware that the outcome could be both career-ending and life-changing.
The principle of the right of appeal is recognised as a vital component of the checks and balances in any fair and civilised system of justice. It is a point of principle MDDUS embraces in its role as the medical defence organisation for more than 50,000 doctors and dentists across the UK.
For healthcare professionals in the UK, the outcome of fitness to practise tribunals can be appealed not only by the registrant, but also by the Professional Standards Authority (PSA) under section 29 of the National Health Service Reform and Health Care Professions Act 2002. Under these ‘section 29 powers’, in the case of the 10 healthcare regulators it oversees, the PSA has the discretion to refer any final fitness to practise decision made by a panel that is considered insufficient for public protection to the High Court, or Court of Session in Scotland.
It’s our view that the evidence suggests the PSA applies this discretion proportionately. We also applaud its recognition that exercising this power is not the only way to address concerns about fitness to practise outcomes. We do, however, take issue with the ongoing anomaly of the GMC retaining a right of appeal, introduced in 2015, over fitness to practise decisions taken by the Medical Practitioners Tribunal (MPT). The GMC is the only one of the healthcare regulators with an independent right of appeal, in addition to the PSA.
It is unclear why doctors should be subject to two potential avenues of appeal when all other healthcare professionals are only subject to one.
The Williams Review into gross negligence manslaughter in healthcare which reported in June 2018 recommended its removal. The Williams Review referenced the ‘unwelcome and unintended consequences’ of the powers and suggested its removal would mitigate the distrust felt by doctors towards their professional regulator in the aftermath of the highly publicised case against Dr Bawa-Garba. The Review considered that effective public protection could be maintained through the PSA’s right of appeal.
A year later, in June 2019, the Hamilton Report (on the independent review of gross negligence manslaughter and culpable homicide) supported the findings of the Williams Review, noting the importance of perceptions in this area and making the case that the current state of mistrust was hampering the GMC’s ability to regulate effectively.
We were and remain fully supportive of the conclusions of both reports.
With oversight of the fitness to practise decisions of all of the healthcare regulators, the PSA is uniquely placed to take an approach that is fair and consistent in determining whether to exercise its right of appeal.
MDDUS’ opinion remains that the GMC’s right to appeal MPT decisions was ill-conceived and Government should follow through on their stated commitment to remove it as part of the planned reforms to the health professional regulators. Stripping the GMC of this power carries no issue that would compromise natural justice, nor would it make the fitness to practise tribunal process favour doctors, because a failsafe mechanism is in place in the shape of the PSA. The PSA’s Annual Report for 2019/20 reveals detailed case reviews were undertaken in 147 cases, following which the PSA’s right of appeal was exercised 21 times in the context of a total of 2,783 fitness to practise determinations notified – i.e. in 0.75% of all possible cases. This demonstrates a proportionate use of the PSA’s powers, which in our view is adequate to ensure protection of the public.
It is important to remember the timeframe for the PSA’s right of appeal does not start running until after the deadline for the registrant’s right of appeal has expired. Having arrived at the apparent end of the fitness to practise process, the registrant therefore has a further 68 days (or, in the case of decisions which the registrant does not have the right to appeal, a further 56 days) to wait to learn whether their professional fate is to be challenged further. If an appeal is marked by the PSA (and/or the GMC, in the context of decisions made by the MPT), then the uncertainty prevails until such time as the relevant court can hear the appeal and issue its judgment.
It is therefore clear the right of appeal should be exercised judiciously and in a proportionate manner to meet the PSA’s overriding objective of ensuring protection of the public. The PSA fairly recognises that exercising its section 29 powers is not the only way to address concerns about fitness to practise outcomes, aiming to help the regulators to improve the quality of their fitness to practise process outcomes by disseminating learning identified throughout the review process.
Looking forward, drawing on the theme of proportionality, it will be vital for the PSA to take account of the unique pressures placed upon healthcare professionals during the Covid-19 pandemic, when making any decision as to whether or not to exercise its right of appeal.
Read some Key statistics - between 2003 to 2020, we have appealed just over 160 final fitness to practise decisions from a potential of more than 45,000, but our 'section 29' power has wider benefits - find out more in in this infographic or on our website here.