The GMC has a ‘statutory duty’ to continue to appeal fitness-to-practise decisions made by its own tribunal until the Government officially strips it of its right to do so.
This is the message in independent legal advice sought by the GMC from Sir Robert Francis QC, and comes as Government legislation is outstanding to strip the GMC of its right to appeal.
Although the Government made its intention clear in June, it has said it can take approximately 18 months to bring necessary leglislative changes through the parlimentary process.
The decision was based on Professor Sir Norman Williams review into gross negligence manslaughter in medicine, which was sparked by the Hadiza Bawa-Garba case and reported in June.
This review also recommended that – pending the new legislation – the GMC should review its processes for deciding when to appeal MPTS decisions, including considering delegating or referring its right of appeal to the Professional Standards Authority.
But Sir Robert has advised the GMC that it ‘would not be lawful’ to ‘impose a moratorium’ on its right of appeal, and the fact that the Government has stated its intention to remove the GMC’s right of appeal does not allow it to ‘ignore’ its ‘statutory duties’ to pursue such appeals where appropriate.
He also advised that the GMC ‘cannot lawfully delegate’ appeals considerations to the PSA, or any other body.
However, the GMC said it would make a number of changes to its decision-making process for appeals decisions whilst the legislation was pending.
It said this would include:
- Incorporating the Court of Appeal’s clarification on thresholds that should be applied when considering whether to appeal and consideration of context and systemic issues;
- Delegating appeals decisions to a three-person executive panel comprising of the GMC chief executive, medical director and fitness-to-practise director.
- Increasing transparency by publishing panel decisions; and
- Seeking the views of the PSA as part of its considerations when making decisions on whether to appeal MPTS decisions.
In a letter to the House of Commons Health Committee, which outlined the actions, GMC chief executive Charlie Massey said: ‘This of course remains a developing area and we will continue to evaluate our own processes and how we use our right of appeal as part of our duty to protect the public and uphold public confidence in the profession.
‘Alongside this we are engaging with the Department of Health and Social Care on the proposed legislation to ultimately remove this right.’
GP defence organisation the Medical Protection Society said the Government should publish a timeline for legislative change to remove the GMC’s right of appeal.
Dr Rob Hendry, its medical director, said: ‘We welcome the GMC’s decision to explore whether it would be possible for them to stop appealing cases while we wait for the Government to introduce new legislation.
‘It is now high-time that the Government acts on our call to change and that they publish a timeline for when they plan to introduce these changes sooner rather than later.’
The GMC told Pulse in July that it intended to continue to appeal MPTS fitness-to-practise decisions until the law is changed.
The GMC has only been able to appeal MPTS decisions in the High Court since 2017, but Pulse revealed in March it had already done so on 23 occasions in just 10 months, striking off seven doctors as a result.
GMC appeals overhaul sparked by Bawa-Garba case
The issues have been sparked by the high-profile case of Dr Hadiza Bawa-Garba who was found guilty of gross negligence manslaughter over the death of six-year-old Jack Adcock.
The GMC sought her dismissal, but the Medical Practitioners Tribunal Service (MPTS) suspended her from the medical register for a year, which was later extended by six months.
The GMC appealed against the decision and in January a High Court ruled that she should be struck off, but Dr Bawa-Garba subsequently took her case to the Court of Appeal and in August won her bid to be reinstated.
The case led to a rapid policy review into gross negligence manslaughter in healthcare, chaired by Professor Sir Norman Williams.
The review was set up to look at the wider patient safety impact of concerns among healthcare professionals that simple errors could result in prosecution for gross negligence manslaughter.
It reported back in June, saying the GMC’s use of the right of appeal was not excessive, but it recommended that the government should legislate to remove the GMC’s right of appeal, something that the government has subsequently said it will do, although it could take around 18 months to bring forward the necessary legislation, subject to parliamentary time.
It also recommended that ahead of the legislative change, the GMC should review its processes for deciding when to refer a decision of the MPTS, and for the GMC to consider delegating or deferring its right of appeal to the Professional Standards Authority – which oversees the nine health regulators – while carrying out the review.