On 31 December 2015 the GMC gained the ability to appeal fitness to practise decisions of the Medical Practitioners Tribunal Service (the MPTS) to the High Court where it considers the original decision to be unduly lenient. Until now only the Professional Standards Authority for Health and Social Care (the PSA) could appeal unduly lenient findings. We examine how these appeals will work and the cross-over with the PSA’s existing powers.
The General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015 was made on 19 March and came into force on 31 December, inserting a new Section 40A in the Medical Act 1983. Where the Fitness to Practise Panel has issued a doctor with a suspension or conditions, or has not imposed a sanction (including where there is no finding of impairment), the GMC can appeal to the High Court if it considers that the decision is unduly lenient or should not have been made, and that it is desirable for the protection of the public for the GMC to appeal. Undue lenience may include considering that the findings on fitness to practise are inadequate, or that the sanction does not adequately reflect the findings on impairment.
The wording of Section 40A matches the PSA’s powers to appeal a decision of any of the healthcare regulators under Section 29 of the National Health Service Reform and Health Care Professions Act 2002. Until Section 40A was implemented, the GMC was not able to appeal its own fitness to practise decisions, and had to rely on the PSA to appeal (at which point the GMC would be listed as a respondent, allowing it to be involved in the appeal). In order to prevent both the GMC and the PSA appealing at the same time, a Section 29A has been added to the 2002 Act. Should the PSA bring its own appeal against the decision, it must inform the GMC of the appeal and the GMC must inform the High Court whether or not it wants the appeal to continue. If it does want the appeal to continue, from then on it will be treated as a GMC appeal under Section 40A of the Medical Act.
Given the short time since the GMC have been able to make their own appeals, it is not yet clear how the concurrent appeal powers will work in practice, and in particular what will happen if the GMC does not wish for the appeal to continue. It will also be interesting to see whether there is any difference between decisions which the GMC decides to appeal for being unduly lenient and those the PSA decides to appeal.
While this new power to appeal is first being implemented for the GMC, it may be that after a trial period other healthcare regulators also request powers to appeal decisions of their disciplinary panels; to do so there may well be intense scrutiny of the independence of panels. The GMC will point to the MPTS having become a statutory committee of the GMC and the steps it has taken (including the nomenclature) to separate functions. Other regulators may face a greater challenge in demonstrating the separation and structural independence.