|
25.267 |
I shall now consider the processes undertaken at the adjudication stage. I shall begin by examining the composition of the FTP panels which will hear allegations that have been referred to the adjudication stage. |
Fitness to Practise Panels
|
The Composition of the Panel
|
|
25.268 |
As I have already said, GMC members will not be eligible to sit on FTP panels. However, the panels will work within an organisational and policy framework established and supported by the GMC. Panels will be composed of associates, some medically qualified and some not. They will be appointed, selected and trained by the GMC, which will also manage, monitor and appraise their performance. Continued service as a member of a FTP panel will depend on performance being satisfactory. |
|
25.269 |
Panels will be chaired by panellists who have undergone assessment and have been appointed to act as chairmen. Chairmen may be medical or lay. At the Inquiry seminars, there was some discussion about the wisdom of having a legally qualified chairman. I discussed this issue in Chapter 21 and also drew attention to the recommendation of Miss Jean Ritchie QC in her report into the conduct of Rodney Ledward. She expressed the view that the chairmen of PCC panels should be legally qualified. Plainly, FTP panels need legal advice and expertise. In the past, this has been provided by a legal assessor and, in the immediate future at least, it is intended that this should remain the case. Some legal assessors are no doubt very good. I have also seen transcripts of advice given by legal assessors that has been unclear or even frankly wrong. Even if the legal assessor is completely competent, there are limitations on the role s/he can play. He or she cannot direct the course of the FTP panel’s deliberations so as to ensure that matters are considered in a logical order and that only evidence relevant to the issue under consideration is taken into account. It is difficult to teach these skills to a non-legal chairman who may sit on a GMC panel only a few times in a year. Also, as I observed in Chapter 21, the GMC has to teach its chairmen how to conduct a hearing and what to say at each stage of the proceedings. Such matters would be second nature to a legally qualified person. |
|
25.270 |
In November 2001, the Council agreed (by 36 votes to 35) that, under the new procedures, FTP panels hearing conduct cases which met appropriate criteria should have a legally qualified chairman. It was envisaged that a legally qualified chairman would be appointed in long or complex cases, in cases involving many difficult legal or procedural issues and in certain high profile or particularly controversial cases. A decision as to whether a legal chairman should be appointed would be taken at the case management stage. Internal GMC documents show that the November 2001 decision was still extant a year later. In May 2003, Council agreed that, if a legally qualified chairman was appointed to chair a hearing of a conduct case, a legal assessor should also be appointed. Since May 2003, it appears that the intention to use legally qualified chairmen has been abandoned. Sir Graeme Catto told the Inquiry that the GMC had discussed the idea of using legal chairmen in the recent past and had decided to ‘leave that option open’. He said that some associates eligible to sit on PCC panels were legally qualified; he did not know whether any of them have ever chaired a panel. |
|
25.271 |
My view on this issue is that, if the GMC retains control of the adjudication stage, it should enrol some legally qualified chairmen and should try them out, starting with the more complex cases. If they are found to be a success, the practice could be extended. It seems to me that the new procedures are bound to throw up new legal points. Some of them might well be complex. The presence of a legally qualified chairman might help to ensure that decisions on such points were right, from the start. If the idea were taken up of having a corps of panellists who would sit on cases from all the healthcare regulatory bodies, it would be possible to have full-time legally qualified chairmen. |
|
25.272 |
In addition to a legal assessor, FTP panels may, in a case involving a health or performance element, receive advice from one or more specialist health advisers or specialist performance advisers selected by the Registrar from a panel maintained for the purpose. A legal quorum for the FTP panel will be three, including at least one lay and one medical panellist. GMC staff will act as secretaries and clerks to the FTP panels. The September 2004 draft Guidance for Panellists suggests that a doctor will be able to apply for a specialist adviser to be appointed in a case including allegations of misconduct. I think this must be intended to provide panellists with advice about the practice and standards to be expected within a particular medical specialty. |
Notice of Referral to a Fitness to Practise Panel
|
|
25.273 |
Following a decision to refer a doctor to a FTP panel, s/he will be sent a notice of referral containing certain specified information. The November 2004 Rules provide that the allegation(s) and the facts on which it/they are based must be particularised. The 2003 draft Rules had merely required them to be summarised. It is a fundamental rule of natural justice that a person facing any form of disciplinary process must have adequate notice of the charges s/he is to face. If a doctor is facing a specific allegation of misconduct, it is vital that s/he is told exactly what is alleged. However, it does appear to me that, in some types of case (for example, one that depends to a large extent upon a performance or health assessment), it would be sufficient if the doctor were to be told (adopting the words of the adjudication stage test proposed by the GMC) that it was alleged that his/her fitness to practise was impaired (to a degree justifying action on registration) by reason of the matters contained in the assessment report. Even in conduct cases, I doubt that the degree of particularity that appears to have been given in the past is necessary for the giving of proper notice to the doctor. Reading some PCC decisions, it appears that the proceedings have been broken down into the consideration of every single element which must be proved in order to support the allegation of SPM. I do wonder whether this is really necessary; it fosters the impression that these are criminal proceedings, whereas they are not. |
|
25.274 |
The Guidance accompanying the July 2004 draft Rules stated (and the passage appears also in the Guidance accompanying the November 2004 Rules): |
| |
‘Where appropriate, the GMC will also notify the practitioner of the outcome it will be seeking at the relevant hearing.’
|
|
25.275 |
This process is not provided for in the Rules. The thinking is that it will be helpful and fair to doctors. In effect it lets them know the worst that could happen to them. I can see that an indication that the GMC is not seeking erasure or suspension might encourage a doctor to make admissions, secure in the knowledge that the worst that can happen is the imposition of conditions or restrictions. He or she might even be able to negotiate a set of conditions which could be entered into voluntarily. However, it does seem to me that there are real disadvantages in such a practice. In the first place, once the GMC has pitched its desired outcome at a certain level - say, the imposition of conditions - it will be extremely difficult for a FTP panel to impose a more serious sanction. The effect will be to tie the panel’s hands. Second, an early indication of the desired outcome is likely to colour preparations for the hearing by both the doctor and the GMC. If the FTP panel were determined to take a different view, there would be the potential for unfairness to the doctor. Third, I remind the reader that, when the GMC was thinking about the form of its new procedures, it wished to create some real separation between the adjudication and investigation functions. It chose to keep the investigation function in-house and the FTP panels were supposed to have some real independence. In fact, they have precious little. Panellists are to be selected, appointed, trained, issued with guidance, appraised and possibly dismissed by the GMC. If, in addition, the GMC seeks effectively to impose an upper limit on the sanction available in an individual case, the independence of FTP panels will be further reduced. |
|
25.276 |
Moreover, it appears that the present proposals may go beyond the giving of an indication as to what sanction the GMC will seek. ‘Outcome’ could include the giving of undertakings which might be accepted without any findings of fact or decision about impairment of fitness to practise. I have already expressed my views about the need, in the public interest, for clarity in the resolution of cases involving misconduct, convictions and determinations. |
|
25.277 |
I think that the GMC should think again about this whole idea. I do not think that any indication of the GMC’s preferred outcome should be given in advance of the hearing. It would create an expectation on the part of the doctor which, if not fulfilled, would be unfair to him/her and which, if fulfilled, may not provide adequate protection for patients. Moreover, it may be that, if the case is contested, it becomes more serious as the evidence unfolds. If the GMC is to put forward its views on the appropriate outcome, this should, in my view, be done, as it has been done in the recent past, at the hearing before the FTP panel. If this course is followed, it should be made clear to all that the GMC is only making a submission and that the FTP panel is under no obligation to heed it. |
|
25.278 |
The Guidance accompanying the November 2004 Rules is silent on the question of who at the GMC is to decide what outcome the GMC will be seeking in any individual case (although the Registrar is given responsibility for serving the notice of referral). I do not know who it is intended should decide where the desired outcome is to be pitched. I am not aware of any provision in the Rules relating to the old or the new procedures that entitles any particular person or panel or committee to make such decisions. If a decision of this importance is to be made, the person or body making it should be formally authorised to do so on the GMC’s behalf and proper criteria for such decisions should be agreed and published. |
|
25.279 |
The September 2004 draft Guidance for Panellists gives no advice about how FTP panellists should approach cases where the GMC has given an indication of the desired outcome. Indeed, it does not mention the fact that such an indication might be given. These are important matters on which guidance should surely be given. |
Evidence Gathering
|
|
25.280 |
The November 2004 Rules do not appear to contain any specific provision for further investigation of a case after referral to a FTP panel. The Guidance which accompanies the November 2004 Rules says that, before sending out a notice of referral, the Registrar will undertake such further investigations (including instructing solicitors to procure witness statements and other documentary evidence) as are necessary for the satisfactory presentation of the GMC’s case at the hearing. In my view, there should be enshrined in the Rules a specific power to investigate further. This should empower the GMC to require the production of any evidence, documentary or otherwise, in the event that anyone might seek to impede such investigations. |
Case Management
|
|
25.281 |
In the past, considerable problems arose with the arrangements for hearings before PCC panels. There was no formal mechanism for case management. As a consequence, there were no proper arrangements for disclosure of evidence and no reliable means of ascertaining the likely length of cases or of scheduling them at times when the parties and witnesses were available. This led to the frequent adjournment of cases, with consequent inconvenience, delay, expense and, no doubt, distress both to witnesses and to the doctors concerned. In the recent past, some informal management of cases referred to a PCC panel was undertaken. However, participation was entirely voluntary. A very welcome aspect of the new procedures is the introduction of a formal system of case management with pre-hearing case management reviews. |
|
25.282 |
The case management provisions apply to initial referrals to a FTP panel and also to subsequent hearings to review a case (where a doctor’s registration has been suspended or made subject to conditions) and to applications for restoration of a doctor’s registration. The case management reviews will be conducted by a legally qualified Case Manager. The November 2004 Rules provide that the Case Manager should act independently of the parties. He or she is to be a quasi-judicial figure, who will be contracted part-time by the GMC to deal with case management reviews. Case management reviews will usually take place by telephone conference. The Case Manager will give directions to secure the ‘just, expeditious and effective’ running of the hearing before the FTP panel. |
|
25.283 |
The November 2004 Rules set out detailed provisions for one or more case management reviews in advance of a FTP panel hearing. The provisions (which have been extensively revised since they first appeared in the 2003 draft Rules) cover such matters as the disclosure of documents, exchange of witness statements, exchange of expert evidence, and exchange of skeleton arguments. They also cover the provision of time estimates and suggested dates for hearings. They provide for the parties to state whether the health of the doctor is to be raised as an issue and for the doctor to give prior notification of the extent to which facts and evidence are admitted. There is provision for the Case Manager to direct the parties to provide a statement of agreed facts in a case where an allegation is admitted. In short, the case management provisions should enable the parties and members of the FTP panel to prepare properly for hearings, should avoid the unnecessary attendance of witnesses and should reduce to a minimum the frequent adjournments which were in the past made necessary by the late disclosure of important evidence. |
|
25.284 |
The November 2004 Rules also provide for certain ‘automatic’ directions to take effect in the absence of any direction by a Case Manager or of agreement by the parties to the contrary. These are applicable to hearings by both FTP and IC panels. These directions require each party not less than 28 days before the date of the hearing to provide to the other party a list of every document which s/he proposes to introduce as evidence, together with a copy of every document which the other party has not previously received. They also require each party to notify the other, within 14 days of receiving the list, whether or not s/he requires any person to attend to give oral evidence in relation to the subject matter or making of any document. Even where one party notifies the other that s/he requires a person to attend, the IC or FTP panel has discretion to dispense with the need for oral evidence in certain circumstances. |
|
25.285 |
The November 2004 Rules provide that a FTP panel may draw such inferences as it considers appropriate in respect of the failure by a party to comply with directions issued by the Case Manager. There had been concern that the case management provisions would have no ‘teeth’, since there was no sanction available if directions were not complied with. It was suggested that the risk that adverse inferences might be drawn from the result of non-compliance should be a deterrent. It was also suggested that a party who failed to comply might be penalised in costs. However, it appears that the idea of imposing a penalty on costs has not been adopted; instead, the drawing of adverse inferences is to be allowed. The Guidance which accompanies the November 2004 Rules states that failure to comply with the directions of the Case Manager might lead, not only to the drawing of adverse inferences, but also to evidence not being admitted at the FTP panel hearing. That provision is not in the Rules, although I suppose it might be said that an IC or FTP panel has a discretion to refuse to admit any evidence for good reason. I am rather concerned about the provision that an adverse inference may be drawn against a party who has failed to comply with a case management order. I would have thought that it would be proper to do that only in a most exceptional case, where a flagrant refusal to comply is consistent only with the desire to conceal a particular piece of evidence. In general, I would have thought it dangerous to draw adverse inferences from what may be no more than a failure to comply due to incompetence and disorganisation. One must not lose sight of the objective of the proceedings, which is to arrive at the truth. I think that a penalty in costs would usually be more appropriate. That can sometimes teach an incompetent solicitor to do better in future. If such a penalty were available against a doctor, it would have also to be available against the GMC. |
Comment
|
|
25.286 |
Taken as a whole, I regard these new case management provisions as a very good idea. However, their effectiveness will be directly related to the amount of effort that is put into them by the Case Managers. In the course of my work as a judge, I have seen many case management orders which simply follow a standard form and are not adequately tailored to the specific circumstances of the case. That is a danger where automatic directions are allowed to operate or where the parties are allowed to agree an order. Good case management requires that the judge (or Case Manager) has the time and inclination to read the papers thoroughly, to get a clear grasp of the issues, to ask a lot of questions about the way in which the case is to be presented and to make orders that will ensure that the parties are ready with their evidence and that no one is taken by surprise. I hope that these provisions will have the desired effect. The work of Case Managers should be audited to ascertain the extent to which they achieve their objective of avoiding adjournments, disrupted hearings and the unnecessary attendance of witnesses. |
|
25.287 |
The Guidance accompanying the November 2004 Rules suggests that case management reviews may not be necessary for cases which rely to a large extent on health or performance assessments. I recognise that the GMC has a good deal of experience of such cases. However, I must say that the impression I have, from reading the transcripts of one or two performance cases, is that a case management review would have been most helpful. Miss Jackie Smith, Head of the Performance Section, told the Inquiry about one performance case in which the doctor had called 36 witnesses. I would have thought that robust case management might have helped to avoid such a situation. |
The Hearing: the Parties
|
|
25.288 |
The November 2004 Rules state that the ‘parties’ to a hearing before a FTP panel are the GMC and the doctor, or their respective representatives. Under the new procedures, it will no longer be open to the maker of an allegation to present the ‘prosecution case’. Doctors are expected to attend hearings. They are entitled to be represented by counsel or a solicitor, or by a representative of their professional organisation, or, in certain circumstances, by a member of their family or another person. The GMC will be represented by the Presenting Officer. If the doctor does not appear, the FTP panel may, in certain circumstances, proceed to hear the case in his/her absence. |
The Hearing: Public or Private
|
The 2003 Proposals
|
|
25.289 |
The 2003 draft Rules provided that, except where considering a health allegation (and in certain other special circumstances), a FTP panel must sit in public. The Guidance which accompanied the 2003 draft Rules, however, stated that, where a FTP panel was considering an allegation of adverse health or of deficient performance, the presumption was that the case should be heard in private. The proposals at that stage, therefore, created uncertainty as to whether it was intended that a case involving an allegation of deficient performance should be heard in public or in private. This topic had been the subject of debate within the GMC for some time. |
The 2004 Position
|
|
25.290 |
The November 2004 Rules provide that hearings before a FTP panel should in general take place in public. They provide that a hearing before a FTP panel should be in private when the panel is considering a doctor’s physical or mental health. They also provide that it should be open to a FTP panel, in certain circumstances, to hold a public hearing in a health case. Such public hearings are likely to be unusual. |
|
25.291 |
A FTP panel may, of course, engage in private deliberations (i.e. discussions about the decisions it has to make or about other issues relevant to a case) at any stage of a hearing. |
The Hearing: Standard of Proof
|
|
25.292 |
The November 2004 Rules are silent on the standard of proof to be applied by FTP panels. The Guidance accompanying the November 2004 Rules states: |
| |
‘Where it is making a finding on disputed facts, the panel must be sure of its decision. (That means that the criminal standard of proof is applied to findings of fact.) The issue of whether the practitioner’s fitness to practise is impaired, and the imposition of a sanction, or warning, are matters of professional judgment.’
|
|
25.293 |
The Guidance goes on to deal with decisions relating to sanction: |
| |
‘The panel must be sure that any proposed action (whether to close a case with or without a warning, or to impose a sanction on the doctor’s registration) is sufficient to protect patients and the public interest, failing which it must consider taking action against the practitioner’s registration or imposing a more severe sanction, as appropriate.’
|
|
25.294 |
Both IC and FTP panels may, where it would be just to do so, consider and determine together two or more allegations against the same doctor within the same category or the separate categories of impairment listed in section 35C(2)(a)-(e). They may also consider and determine together allegations against two or more doctors. The Guidance accompanying the November 2004 Rules states: |
| |
‘Hearings will, therefore, be holistic, in that allegations will be brought forward based on the totality of the evidence obtained during the investigation stage (including, where appropriate, health and performance assessment reports) and may comprise a combination of allegations relating to a doctor’s health, performance or conduct, or based on a caution, conviction or determination.’
|
|
25.295 |
In a recent letter to the Inquiry, the GMC observed that it would not be possible to approach the issue of standard of proof, as in the past, on the basis that it was determined by the category of case being heard. The letter stated: |
| |
‘... the GMC appreciates that there are practical issues to be resolved and is therefore in discussion regarding its approach to the standard of proof and the way in which hearings will operate in this respect.’
|
|
25.296 |
Mr Scott told the Inquiry that hearings would not be labelled ‘health’, ‘conduct’, ‘performance’, ‘conviction’ or ‘determination’. Instead, hearings will deal with allegations of various kinds, side by side. There will not be different processes according to the nature of the allegation made. Mr Scott gave the example of a performance case where a complaint had been made about a specific incident or incidents. He said that, if evidence could be adduced to support the complaint, then the subject matter of the complaint could be asserted as a fact and the criminal standard of proof would apply to the making of a decision as to the truth or otherwise of that fact. If, however, the evidence to support the complaint was not available, the subject matter of the complaint could be used merely as a ‘trigger’ to carry out a performance assessment and would not feature in the list of charges. The relevant evidence before the FTP panel would then be the assessment report and the criminal standard of proof would not apply. |
Comment
|
|
25.297 |
The issue of what standard of proof should be applied in GMC proceedings is a thorny problem. The GMC has always maintained that, out of fairness to the doctor, the criminal standard of proof must be applied to findings of fact in conduct cases. In Chapter 21, I observed that it seems something of a paradox that the GMC should insist on the criminal standard of proof and yet allow findings of fact to be made on a bare majority decision. I suggested that the civil standard was more appropriate in proceedings which had the protection of patients and the public interest as their primary objectives. In the case of Sadler v General Medical Council, the Court observed that the appropriate standard of proof in a performance case was the civil standard. Under the new procedures, a FTP panel may have to decide issues of conduct, performance and possibly health during the same hearing. It would be quite a tall order for them to direct themselves properly as to the different standards of proof, especially without the guidance of a legally qualified chairman. In my view, the appropriate standard of proof within a protective jurisdiction is the civil standard. In proceedings affecting the welfare and safety of children, the civil standard of proof is applied, notwithstanding the facts that the allegation considered might also amount to a criminal offence and the consequence of an adverse finding might well be the loss of contact with a child. I shall recommend that the GMC adopts the civil standard of proof for all cases, except, perhaps, those allegations of misconduct which also amount to a serious criminal offence, for which cases the criminal standard of proof would arguably be appropriate. |
The Hearing: Procedure
|
|
25.298 |
The procedure to be followed at a hearing of a FTP panel was set out in the 2003 draft Rules but has been extensively revised since. I do not propose to set out the procedure in detail. Its main elements, as they appear in the November 2004 Rules, can be summarised briefly. |
Evidence about the Facts
|
|
25.299 |
Following any preliminary legal arguments, the doctor will indicate whether s/he wishes to make any admissions. Where facts are in dispute, the Presenting Officer will open the case for the GMC and may adduce evidence and call witnesses in support of the case. As at present, witnesses will give evidence on oath or will affirm. They can be compelled to attend. |
The Admission of Hearsay and Other Inadmissible Evidence
|
|
25.300 |
There is no significant change to the rule governing the admissibility of evidence. The November 2004 Rules provide that an IC panel or FTP panel may: |
| |
‘... admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law’.
|
| |
That provision is subject to a proviso: |
| |
‘Where evidence would not be admissible in criminal proceedings in England, the Committee or Panel shall not admit such evidence unless, on the advice of the Legal Assessor, they are satisfied that their duty of making due inquiry into the case before them makes its admission desirable.’
|
| |
This provision is very similar to the equivalent rule under the old procedures. I hope that, in the future, FTP panels will be more ready to admit hearsay evidence than they have been in the past. |
Vulnerable Witnesses
|
|
25.301 |
A welcome development is the rule providing for the treatment of vulnerable witnesses, including young people and witnesses who claim to have been the victim of a doctor’s sexual misconduct. The rule enables an IC or FTP panel to use such measures as video links, pre-recorded evidence, interpreters or intermediaries, screens and the hearing of evidence in private to assist such witnesses. A doctor who is unrepresented will not be permitted to cross-examine a witness who claims to have been a victim of sexual misconduct by him/her without the written consent of the witness. Instead, the doctor (or, failing that, the GMC) must appoint a legally qualified person to cross-examine on his/her behalf. The FTP or IC panel must take into account the advice of the legal assessor and any representations from the parties in relation to the treatment of vulnerable witnesses. |
Inquisitorial or Adversarial Proceedings
|
|
25.302 |
Historically, proceedings before the PCC panel were adversarial in nature. Recently, there has been some discussion about the possibility of adopting a more inquisitorial procedure, whereby it would be open to panellists to explore areas of evidence not covered by the parties’ advocates. |
|
25.303 |
In its 2001 Consultation Paper, the GMC said: |
| |
‘There is a concern that PCC hearings are oppressive and upsetting, particularly to witnesses. Although a move to a more inquisitorial procedure would not negate the need for the evidence of witnesses to be thoroughly tested, it is arguable that a less adversarial approach would create a greater sense of an impartial investigation of the facts and achieve the same results, while causing less distress to those questioned. Any changes would have to safeguard the rights of doctors to defend themselves fully. The GMC’s preferred direction is towards a more inquisitorial model, and it intends to commission work, drawing, where appropriate, on best practice elsewhere, to explore the possibility of developing an inquisitorial process for the PCC which would not compromise the doctor’s right to a fair hearing.’
|
|
25.304 |
The proposed move to a more inquisitorial process was supported by a large majority of respondents to the 2001 Consultation Paper, both medical and lay. |
|
25.305 |
Following the consultation process, the GMC examined some examples of inquisitorial processes, but concluded that the existing style of PCC hearings should be retained. In coming to that conclusion, the GMC emphasised the extent to which members of the PCC were involved in questioning witnesses. Indeed, it suggested that the process before the GMC was not (as it appeared to have accepted in its 2001 Consultation Paper) purely adversarial, but was instead ‘hybrid’, in that it incorporated both adversarial and inquisitorial elements. |
|
25.306 |
In fact, while FTP panellists are able to ask some questions, they are not encouraged to allow their questions to range too widely. The September 2004 draft Guidance for Panellists advises that ‘the purpose of the Panel’s questions is to seek clarification, not to cross-examine the doctor or witness’. The intention seems to be that panellists should ask questions only to clarify issues that have already been raised. In my view, this is a pity. I have seen examples of cases before PCC panels in which the advocates on both sides had failed to explore an issue which was of real importance. An example was the case of Council for the Regulation of Healthcare Professionals v General Medical Council and Solanke, in which the doctor had admitted to the PCC having an improper relationship with a vulnerable patient and that he was, therefore, guilty of SPM. Neither counsel had sought to explore the circumstances in which the relationship had begun. This was plainly an important issue. The outcome of the case was the imposition of a sanction that appeared to the CRHP/CHRE, to be unduly lenient. It appealed to the High Court. The Judge held that, on the basis of the information available, the decision was at the lenient end of the spectrum but not unduly lenient. He pointed out, however, that the case had not been properly investigated and that no questions had been asked at the hearing about how the relationship had begun. This was, the Judge said, ‘a serious failing’. Had it been regarded as acceptable for panellists to explore issues for themselves, this might have occurred in the case of Solanke and all the relevant facts might well have emerged. |
|
25.307 |
In my view, there should be a change of policy on this issue. I do not suggest that GMC proceedings should become purely inquisitorial. However, I do think that they should become more inquisitorial in that panellists should be encouraged to ask questions and to explore issues which they think are of relevance, even if it appears that the parties do not intend to do so. The objective of the hearing is, after all, to enable the panel to reach the right decision for the protection of patients and the public. |
Submissions Made and Evidence Adduced by the Doctor
|
|
25.308 |
At the conclusion of the GMC’s evidence, the doctor may submit to the FTP panel that the evidence which has been adduced is insufficient to enable the panel to find the facts proved, or to support a finding of impairment of fitness to practise. If such a submission of ‘no case’ is made, the FTP panel must consider and announce its decision whether to uphold the doctor’s submissions. If no submission is made, or if a submission fails, the doctor may then open his/her case and may adduce evidence and call witnesses in support of it. The chairman of the FTP panel will then ask the specialist adviser(s), if any, to give any advice on the medical issues. The legal assessor may be invited to give advice on points of law. |
The Panel’s Findings of Fact
|
|
25.309 |
The FTP panel will then consider the evidence and announce its findings on the facts. The May 2004 draft Rules provided that, save in exceptional circumstances, a FTP panel should not be required to give reasons for its findings of fact. That provision did not appear in the July 2004 draft Rules, nor does it appear in the November 2004 Rules. It was not at first clear to me whether this change in the Rules meant that FTP panels would always give reasons or whether it merely indicated that the GMC no longer considered that the issue needed to be covered by the Rules. I hoped that the former was the case because it is important, in the interests of transparency, that the parties and the public understand why a FTP panel has decided as it has at all stages of the proceedings. However, the September 2004 draft Guidance for Panellists says that panels will not normally be required to give reasons for findings of fact unless it is necessary to do so. Examples given are when it is necessary to ‘clarify the finding of fact’ or ‘in other exceptional circumstances’. I do not think this is at all satisfactory. It is important, as I have just said, that the parties and the public should understand why decisions have been reached. I do not suggest that elaborate explanations should be given. Nor should it be necessary for the panel to deal with every single disputed fact. However, panels ought to explain their findings on the crucial factual issues and it should be possible for this to be done in a few sentences. I can see that this would be easier for a legally qualified chairman than for one who is not. |
Evidence and Findings on the Issue of Fitness to Practise
|
|
25.310 |
A FTP panel will have the power, under rule 17(4), before making a determination whether a doctor’s fitness to practise is impaired, to direct a health or performance assessment. This is a welcome development and means that a FTP panel will be able to get a more rounded picture of the doctor than at present. On receipt of the assessment report, the FTP panel may then proceed to consider and determine the allegation or may, under rule 17(5)(b), refer the allegation back to the Registrar for referral to the case examiners so that they can consider whether it would be appropriate for the doctor to be dealt with by way of voluntary undertakings. |
|
25.311 |
This latter provision causes me some concern. It is obviously useful that a FTP panel should be able to obtain the assessment but it would be thoroughly unsatisfactory if, having received the assessment, the panel could avoid making findings of fact or a decision whether the doctor’s fitness to practise is impaired. That appears to be the effect of the provision I have just mentioned. So, for example, in a case where a doctor has been convicted of offences of dishonesty in the context of drug addiction, there will be a referral to a FTP panel but the panel, on receiving a health assessment, might send the case back for voluntary undertakings without there being any finding of impaired fitness to practise. This really will not do. If the GMC is to regain the confidence of the public, it must be seen to be taking appropriate action. Once seized of a case, a FTP panel must reach a decision. It could still send the case for voluntary undertakings if it thought that that was appropriate after deciding that there was impairment of a degree justifying action on registration. However, in my view, the better course would be for the FTP panel to impose conditions itself and to have the same supervisory arrangements for conditions imposed by a FTP panel as for voluntary undertakings. |
|
25.312 |
Apart from exercising its power to order a health or performance assessment, the FTP may also receive any further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the doctor’s fitness to practise is impaired. |
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25.313 |
The 2003 draft Rules specifically provided for FTP panels to receive evidence about a doctor’s past history before making a finding in relation to impairment of his/her fitness to practise. The Guidance which accompanied the 2003 draft Rules stated that the Presenting Officer would be able to adduce evidence about previous warnings issued by the IC and findings by a FTP panel that the doctor’s fitness to practise was impaired. This was at the stage after the FTP panel had made its findings of fact and before it made a decision as to the doctor’s fitness to practise. |
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25.314 |
By contrast, there is no explicit provision in the November 2004 Rules which requires a FTP panel to take into account a doctor’s FTP history. The Guidance which accompanies the November 2004 Rules is silent on this point, as is also the September 2004 draft Guidance for Panellists. This omission is puzzling as it surely cannot be intended that FTP panels should not consider this information. It may be that the GMC had concluded that there is no need to make provision for it in the Rules. There was such a provision in the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988, under the old procedures, and there is a provision in the November 2004 Rules governing the procedure of IC panels when considering warnings. Why is there no such provision for FTP panels? It might have been omitted by mistake, but then one would have expected to see reference to consideration of the doctor’s past history in the September 2004 draft Guidance for Panellists. But it is not there either. I think it should be spelled out exactly what previous history (if any) the FTP panel will look at and at what stage. |
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25.315 |
In Chapter 21, I mentioned my concern that PCC panels often took purely personal mitigation into account when deciding whether a case of SPM had been proved. I explained my view that such personal mitigation was quite irrelevant to the issues of SPM, but that PPC panels might have been misled by the decision of the Judicial Committee of the Privy Council in the case of Rao v General Medical Council, which was based upon a misunderstanding of what had been said in the case of Preiss v General Dental Council. This problem should not arise under the new procedures because purely personal mitigation will be relevant to the issue of whether a doctor’s fitness to practise is impaired. The whole picture will be relevant including past misconduct, past problems of health or performance and personal mitigation. |
The Test to Be Applied
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25.316 |
When it has received the further relevant evidence, the FTP panel will deliberate and will announce its findings on impairment of fitness to practise. It must give reasons for its decision. Rule 17(2)(k) of the November 2004 Rules requires a finding as to whether the doctor’s fitness to practise is ‘impaired’. The rule does not add the words ‘to a degree justifying action on registration’. The rule correctly reflects the statutory test in section 35D of the 1983 Act. Inconsistently with that, the September 2004 draft Guidance for Panellists says that FTP panels will decide whether fitness to practise is impaired ‘to a degree justifying action on registration’. This kind of inconsistency is very confusing. The position is this. The first task of the FTP panel is to decide whether the doctor’s fitness to practise is impaired. I have suggested a test that it should apply. If it finds that the doctor’s fitness to practise is not impaired, the panel will usually take no further action although it may, under section 35D(3), give the doctor a warning as to his/her future conduct or performance. If the FTP panel decides that the doctor’s fitness to practise is impaired, it should then go on to decide (under rule 17(2)(l)) what sanction to impose. It is at that stage that the panel must decide whether the impairment is such as to justify action on registration. Although the draft Guidance advises panellists that they may (in wholly exceptional circumstances) decide that fitness to practise is impaired and yet take no action, I find it hard to imagine circumstances in which that would be appropriate if the FTP panel found that the impairment of fitness to practise was of a degree justifying action on registration. What the FTP panel can do if it finds that the doctor’s fitness to practise is impaired, but not to a degree such as to justify action on registration, is not entirely clear. I will return to this point very shortly. |
The Hearing: Consideration of Sanctions or Other Action
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25.317 |
If the FTP panel finds that the doctor’s fitness to practise is impaired, it will then receive further evidence and will hear any further submissions from the parties about the appropriate sanction, if any, to be imposed. At any stage before making its decision as to sanction or warning, the FTP panel may adjourn for further information or reports to be obtained in order to assist it in exercising its function. The Presenting Officer and the doctor’s representative are expected to refer to the relevant part(s) of the GMC’s Indicative Sanctions Guidance for Fitness to Practise Panels. The FTP panel chairman will again invite the specialist adviser(s), if any, and the legal assessor, to provide advice on the medical and legal issues. |
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25.318 |
The FTP panel will then consider and announce its decision whether to impose a sanction or a warning or to ‘take into account’ undertakings that have been offered. It must give reasons for its decision. Decisions of the FTP panel are taken by a simple majority. No abstentions are permitted and there is no casting vote. Where the votes are equal, the FTP panel must decide the issue under consideration in the doctor’s favour. The only exceptions to this latter rule occur when a FTP panel is considering a submission of ‘no case’ or where a FTP panel is considering an application to restore a doctor’s name to the register, in which case the issue must be resolved against the doctor where the votes are equal. |
Sanctions
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25.319 |
Section 35D(2) of the 1983 Act provides that, where a FTP panel finds that a person’s fitness to practise is impaired, it may if it thinks fit: |
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‘(a) except in a health case, direct that the person’s name shall be erased from the register;
(b) direct that his registration in the register shall be suspended ... during such period not exceeding twelve months as may be specified in the direction; or
(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests’.
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| 25.320 | These sanctions are the same as those that were available to the PCC. In addition, the PCC had a specific additional power to admonish a doctor in a case where it had found the doctor guilty of SPM but had decided to take no action. After 1999, the term ‘reprimand’ was used instead of the rather old-fashioned ‘admonishment’. A significant change from the past is that, whereas erasure was not available as a sanction to the CPP in a performance case (although indefinite suspension was, in certain circumstances), it will be possible for a FTP panel to direct that the name of a doctor should be erased from the register if it finds his/her fitness to practise impaired by reason of deficient professional performance. The power to impose a sanction is discretionary and it is therefore open to a FTP panel to take no action even after a finding that a doctor’s fitness to practise is impaired to a degree justifying action on registration. As I have said, I find it difficult to imagine circumstances in which that would be appropriate. |
| 25.321 | A doctor is entitled to appeal to the High Court against a decision of a FTP panel. The FTP panel’s determination will not usually take effect until the period for an appeal to be lodged (28 days) expires, or until the appeal itself has been determined. Where a FTP panel considers it necessary for the protection of members of the public, or in the interests of the public or the doctor, it may impose an order of suspension or conditions that will take effect immediately. The power to impose immediate conditions on a doctor’s registration is new and welcome. |
Warnings |
| 25.322 | As I have noted earlier, section 35D(3) provides that, where a FTP panel finds that the doctor’s fitness to practise is not impaired, it may nevertheless issue a warning about his/her future conduct or performance. I can understand why this provision has been inserted. It would be appropriate in a case in which the doctor had done something wrong, possibly making a prescribing error or missing a diagnosis (so that his/her fitness to practise had at the relevant time been impaired), but had taken immediate steps to rectify his/her shortcomings so that, by the time the case came before the FTP panel, his/her fitness to practise was no longer impaired. The September 2004 draft Guidance for Panellists suggests that a warning may be given where there is significant cause for concern after a performance assessment. I have already expressed my reservations about the usefulness of that procedure, if there is to be no form of follow-up. |
| 25.323 | Strangely, section 35D does not give the FTP panel the power to issue a warning where it has found an impairment. This lacuna must surely be unintentional and must be remedied. It is absurd that the FTP panel may find that the doctor’s fitness to practise is impaired, although not to a degree justifying action on registration, but that it could not then issue a warning. I think that the GMC has become confused because it forgets that the statutory test is ‘impairment of fitness to practise’ not ‘impairment to a degree justifying action on registration’. For the avoidance of doubt, I repeat that, in my view the scheme should be as follows: |
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- if the panel finds no impairment it will either take no action or may give a warning under section 35D(3)
- if the panel finds impairment falling short of that justifying action on registration, it should be able to issue a warning and may exceptionally take no action
- if the panel finds an impairment justifying action on registration, it should impose one of the three sanctions in the statute.
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Written Undertakings |
| 25.324 | Rule 17(2)(m) of the July 2004 draft Rules introduced a new provision which has been reproduced in the November 2004 Rules. A FTP panel may ‘take into account’ any written undertakings (including undertakings relating to limitations on his/her practice) entered into by the doctor which the FTP panel considers to be sufficient to protect patients and the public interest. The doctor must expressly agree that the undertakings (save any relating exclusively to his/her health) should be disclosed to his/her employer or PCO, to any prospective employer or PCO and to any enquirer. |
| 25.325 | It is not quite clear to me what is meant by ‘take into account’. Does it mean that, when considering what sanction to impose after a finding of impairment of fitness to practise has been made, the FTP panel may decide that the undertakings offered would provide an adequate degree of protection and that no other action is necessary? If so, that would be reasonable, provided that there were adequate supervision of compliance with the conditions and that a breach of them were to be regarded as every bit as seriously as a breach of conditions imposed by the FTP panel itself. At present, there is no provision in the 1983 Act or the November 2004 Rules for the supervision of a doctor who is subject to such undertakings or for cases where undertakings have been given to be brought back to the FTP panel for routine review or for reconsideration in the event of a breach of undertaking. Nor does it appear that the GMC would have any ‘teeth’ with which to deal with a breach. No doubt those matters could be rectified and, if this procedure is to be used, they must be. However, I cannot see any real reason why a FTP panel should ever need to ‘take into account’ undertakings when considering sanction. If the FTP panel has heard the evidence, it can impose appropriate conditions itself and the existing Rules make provision for review and for action in the event of any breach. |
| 25.326 | It is not clear from the Rules whether this provision is intended to have the limited application that I have just described. The positioning of the relevant provision within the November 2004 Rules and the contents of the September 2004 draft Guidance for Panellists suggests that this will be the case. However, the possibility occurs to me that it might be intended to ‘take into account’ or accept undertakings from a doctor at an earlier stage in the proceedings. The provision is wide enough to permit that. If that were done, the FTP panel might never reach the stage of making findings of fact or deciding whether there was an impairment of fitness to practise. That would not be at all satisfactory. I have already explained why essential findings should not be ‘fudged’. There must be a clear basis on which the GMC acts. Otherwise there can be no proper protection of the public interest. |
Publication of Panel Decisions |
| 25.327 | A decision reached by a FTP panel, together with reasons, will be notified to the doctor, to his/her employer or PCO and to any person or body which brought the allegation to the GMC’s attention. In addition, it will be published on the GMC’s website. The only exception is that confidential information about a doctor’s health will not be made public. |
Review Hearings |
| 25.328 | The Guidance which accompanied the July 2004 draft Rules stated that an order for suspension or for the imposition of conditions would be reviewed by a FTP panel prior to the end of the period for which the suspension or conditions were imposed. The Guidance accompanying the November 2004 Rules states that such an order will ‘generally’ be reviewed. In my view, there should have to be quite exceptional reasons for not holding a review hearing. There is no provision in the Rules for the date of a review hearing to be fixed at the original FTP panel hearing, as was the practice under the old procedures in a health or performance case. Review hearings are extremely important, as they are the ‘teeth’ behind the sanctions other than erasure. If a doctor thinks that a period of suspension or conditional registration will simply expire and that s/he will automatically be allowed to return to unrestricted practice, there will be cases in which the remediation objective behind the imposition of suspension or conditions will not be achieved and patients will be put at risk. |
The 2003 Proposals |
| 25.329 | The 2003 draft Rules provided for the appointment of a case examiner to assist the FTP panel in carrying out its investigations and with preparing evidence for a review hearing. The appointed case examiner was to be responsible, inter alia, for procuring evidence and for inviting the doctor to undergo a health assessment or directing a performance assessment as appropriate. |
The 2004 Position |
| 25.330 | These arrangements were changed by the May 2004 draft Rules (reproduced in the November 2004 Rules), with the result that all these functions are now to be undertaken by the GMC staff, not by case examiners. I assume that this change was made as part of the attempt by the GMC to mitigate the effect of the significant increase to the workload of case examiners caused by the introduction, in the May 2004 draft Rules, of the double-handling of cases by case examiners. In my view, the 2003 proposals were better and should be reinstated. |
| 25.331 | It seems to me that what is required is that someone should be responsible for keeping a watchful eye on the progress of any doctor subject to conditions during the operative period. When examining the old procedures, I came across cases in which conditions had been imposed, including supervised practice and a package of remedial measures, but in which nothing at all had happened for several months. Someone in the GMC should be keeping watch to ensure that the doctor adheres to the conditions imposed and, where appropriate, should request regular progress reports. When the end of the period of suspension or conditional registration approaches and preparations are to be made for a review hearing, it seems to me that, in virtually every case, there should be some sort of independent assessment of those aspects of the doctor’s performance or health that had given rise to the original finding of impairment of fitness to practise. In the past, the GMC has often released a doctor from conditions on the basis of a report from someone involved in his/her remediation. I am by no means convinced of the adequacy of some of these reports as a basis for ending supervision. Those who have been involved in facilitating a doctor’s remediation are not always best placed to assess its resuIts. We all like to think that we have done a good job and there is a grave danger that a report from someone who has been involved will present an unduly sanguine view of the doctor’s progress. In any event, such a person is unlikely to have undertaken any objective, measurable assessment of the doctor’s performance or competence. In my view, there should be something more patently independent and objective. |
Early Review Hearings |
| 25.332 | There is also provision for an ‘early review hearing’. The 2003 draft Rules provided that such a hearing could be held on the application of the doctor, if a case examiner so directed. In addition, the 2003 draft Rules provided that a case examiner should be able to direct an early review hearing where information was received that suggested that such a hearing was ‘necessary’ or ‘desirable’. The May 2004 draft Rules gave the power to direct an early hearing to the Registrar (i.e. the GMC staff) rather than to a case examiner. A direction for an early review hearing was to be made when the Registrar was of the opinion that it was ‘desirable’ to do so. This remains the case under the November 2004 Rules. The right of the doctor to request an early review was retained. However, the July 2004 draft Rules omitted the reference to an application by the doctor for an early review and it was not restored in the November 2004 Rules. |
| 25.333 | The provision that there should be an early review when the Registrar (in practice a member of staff) thinks it ‘desirable’is very vague. There is no requirement that there must be an early review in the event of a breach of a condition or undertaking. Also, it appears that the whole system will be reactive; it will depend upon someone reporting to the GMC that a problem has arisen. It does not appear that anyone in the GMC will be ‘keeping watch’. There is no provision even for a supervisor to submit a regular report. |
The Procedure on a Review Hearing |
| 25.334 | The doctor must be given at least 28 days’ notice of a review hearing and must be provided with certain specified information, including any new evidence. The doctor will be required to indicate whether s/he wishes to attend the hearing. If s/he does not attend, s/he will have an opportunity to make written representations. |
| 25.335 | At the review hearing, the Presenting Officer representing the GMC will inform the FTP panel of the background to the case and of the sanction previously imposed. He or she will direct the FTP panel’s attention to any relevant evidence, including transcripts of previous hearings. The 2003 draft Rules provided that both the GMC and the doctor should be permitted to call or produce evidence. However, the May 2004 draft Rules would have permitted only the doctor to adduce evidence and call witnesses, making the hearing a one-sided process. The July 2004 draft Rules contained a provision permitting the GMC to adduce evidence also and to call witnesses in relation to the doctor’s fitness to practise. The November 2004 Rules also permit evidence to be called by the GMC about any failure on the part of the doctor to comply with a condition previously imposed upon his/her registration. That is most welcome. After the GMC’s evidence, the doctor may present his/her case, may adduce evidence and call witnesses in support of it. The FTP panel will then receive further evidence and hear submissions as to whether the doctor’s fitness to practise is impaired or whether s/he has failed to comply with any condition imposed on his/her registration. |
| 25.336 | The FTP panel must then consider and announce its finding on the question of the doctor’s fitness to practise and in relation to any alleged breaches of conditions. This procedure is good in principle although, as I have said, in my view, there ought to be some up-to-date independent objective evidence about the doctor’s fitness to practise. |
| 25.337 | The FTP panel may then receive further evidence and hear any further submissions from the parties about its disposition of the case and must then consider and announce its decision as to the appropriate direction. It will be open to the FTP panel at this point to ‘take into account’ any written undertakings entered into by the doctor in the same circumstances as I have described previously. |
| 25.338 | The various courses of action open to a FTP panel at this point are set out in section 35D of the 1983 Act and vary according to the direction that was originally made by the panel. Where a FTP panel has given a direction that a doctor’s registration should be suspended, it is open to the FTP panel at a review hearing to direct that the period of suspension should be extended for a specified period not exceeding 12 months at a time. It is also open to the FTP panel, except in a health case, to direct erasure of the doctor’s name from the register. The FTP panel may also direct that the doctor’s registration should, from the expiry of the current period of suspension, be conditional upon compliance with specified requirements for a period not exceeding three years. |
| 25.339 | In Chapter 21, I discussed the problems that could be created by a period of suspension. If the suspension had been ordered as a ‘sharp rap on the knuckles’ for a doctor who had been guilty of some form of misconduct which did not affect his/her clinical practice, it might not have been inappropriate for the doctor to be permitted automatically to resume practice when the period of suspension expired. However, if suspension were imposed on account of poor performance, ill health or a form of misconduct which did affect clinical practice, the effect of suspension might be that the doctor was even more unfit to practise at the end of the period than at the beginning. He or she would have been ‘out of practice’ in both senses of the expression. Sometimes, the panel imposing the suspension would advise the doctor as to what remedial steps s/he should take while suspended. But it was thought, rightly in my view, that no conditions could lawfully be imposed during a period of suspension so supervision was not appropriate. |
| 25.340 | Under the new procedures, it seems unlikely that suspension will be ordered in any case unless there is quite a serious degree of impairment of fitness to practise. It is not possible to impose conditions during the period of suspension, although FTP panels might sensibly advise doctors as to the remediation they think it appropriate that they should undertake while suspended. It seems to me that no doctor who has been suspended should ever be allowed to resume practice without undergoing some form of assessment. In my view, it is not sufficient to impose conditions at the expiration of the period of suspension. Conditions will almost certainly be required, but they should be imposed after the doctor has successfully passed an assessment of basic competence. |
| 25.341 | Where the original direction was for conditional registration, the FTP panel at a review hearing may direct erasure (except in a health case), direct that the doctor’s registration should be suspended, for a maximum period of 12 months, or direct that the period of conditional registration should be extended for a period of not more than three years. It is also open to the FTP panel to revoke its original direction or to revoke or vary any of the conditions imposed by the direction for the remainder of the current period of conditional registration. Where a doctor has failed to comply with a condition on registration, a FTP panel may, except in a health case, only direct erasure of the doctor’s name from the register or direct that the doctor’s registration should be suspended. |
Comment |
| 25.342 | I have already mentioned some of my concerns about what might be described as the ‘business end’ of the new FTP procedures. The mere imposition of conditions or suspension is not enough to protect the public from a doctor whose fitness to practise is impaired. There must be proper supervision and adequate assessment of the doctor before s/he is allowed to return to unrestricted practice. I do not think it is satisfactory for a long period of conditions to be imposed, as this means that the doctor can disappear from sight and practise under very little supervision. The GMC might think that a doctor will be supervised locally by his/her PCO. However, in my view, the GMC should take responsibility. Also, a relatively early date for a review hearing before a FTP panel might well have the effect of focussing the doctor’s mind on his/her remediation. In my view, periods of conditional registration should not usually exceed 12 months initially. A renewed period may well be necessary but the shorter initial period will at least mean that the doctor is brought back for review within a reasonable time. |
| 25.343 | I have already expressed my concern also that there is no provision in the Rules for the regular monitoring or surveillance of a doctor who is subject to a direction for conditional registration imposed by a FTP panel. In other words, the doctor is less well supervised than s/he would have been under the old voluntary health or performance procedures. This is a serious gap and means that conditions imposed by a FTP panel may well be significantly less onerous than for a doctor in voluntary procedures. (Of course, I recognise that the new arrangements for voluntary undertakings in cases with a health or performance element may be rather more lax in future, when they will be under the control of staff rather than the health screeners and performance case co-ordinators who were able to bring expertise and continuity to their work. That remains to be seen.) However, there seems to be no sense in devising a system which is manifestly less stringent in cases where conditions are imposed by a FTP panel than when undertakings are entered into voluntarily. In my view, a professional supervisor should be appointed in every case where a doctor is practising under conditions, and that professional supervisor should provide regular feedback to the GMC. There should be a medical supervisor in all health cases and s/he should be expected to operate to the standards that were required under the old voluntary health procedures. Also, in my view, some form of independent assessment must be made before conditions are lifted. |
Applications to Restore a Doctor’s Registration |
| 25.344 | The 2003 draft Rules set out the procedure to be adopted when a doctor whose name has been erased from the register applies for restoration. They provided for a case examiner to be appointed to consider and prepare the evidence to be placed before the FTP panel at a restoration hearing. He or she was to have the same powers to procure expert and other evidence as in relation to a review hearing. These arrangements were changed by the May 2004 draft Rules and the changed regime is reflected in the November 2004 Rules. The staff - and not case examiners - will carry out the functions that were previously to be carried out by the case examiners. I think that that is a retrograde step. I can see no reason of principle why case examiners should not be required to undertake this work; they are manifestly better qualified to do so than GMC staff. I can only conclude that the reason for the change was to reduce the workload of case examiners. |
| 25.345 | The November 2004 Rules contain no requirement that a performance or health assessment should be carried out automatically in the case of every application to restore. The staff may direct an assessment of performance or health; it is open also to the FTP panel which hears the application to direct an assessment before making its decision. In my view, it should be mandatory for a doctor to undergo an assessment of every aspect of his/her fitness to practise before his/her application to restore is heard. Since the amendment to the 1983 Act effected in 2000, the doctor will inevitably have been off the register and away from clinical practice for an appreciable time - five years if the erasure was not voluntary. |
| 25.346 | The procedure at a restoration hearing is similar to that at a review hearing, save that the decision to be taken by the FTP panel is whether to grant or refuse the application to restore. The FTP panel must give reasons for its decision. In an appropriate case, it may make a direction suspending indefinitely the applicant’s right to make further applications for restoration. It is not open to the FTP panel to restore the doctor to the register subject to conditions. I understand that the GMC believes that FTP panels might restore applicants too readily if the option to restore with conditions is available. It also takes the view that, if there are doubts about a doctor’s fitness to practise, the decision should be to refuse restoration. I understand that point of view. But the time must come where a panel thinks it appropriate to restore but where a period of supervision would be a wise safeguard. I recommend that every doctor restored to the register after erasure should have a mentor, who undertakes to monitor his/her progress and to report to the GMC. |
Appeals |
| 25.347 | Decisions of FTP panels will be subject to appeal by a doctor and to judicial review on the application of a complainant. In addition, the CRHP/CHRE will be able to refer a decision of a FTP panel to the High Court in certain circumstances. The GMC has pointed out that it has no power to appeal decisions made by FTP panels. The GMC says that it wishes to have the ability to question those decisions that do not appear adequately to protect the public interest. In a briefing paper for the May 2004 Council meeting, it was pointed out that the GMC could invite the CRHP/CHRE to mount an appeal on its behalf; however, it was suggested that that was not a satisfactory alternative to being able to act itself. |
| 25.348 | As a consequence, the GMC agreed at its May 2004 meeting that, subject to further work on mechanisms and to consultation, it should request further legislation to enable the GMC to appeal to the High Court against decisions of FTP panels which it considered unduly lenient, either as to sanction or as to whether the doctor’s fitness to practise was impaired on the facts found. In my view, such a power would be inappropriate and is in any event quite unnecessary. It would be inappropriate because the GMC continues to exercise a very close degree of control over FTP panels. It is unnecessary because the CRHP/CHRE has the power and the resources to mount an appeal. If the GMC is concerned about a decision being unduly lenient, it can invite the CRHP/CHRE to take action; indeed, it has already adopted this course in a recent case. The GMC is under a duty to co-operate with the CRHP/CHRE and this seems to me to be an obvious area for such co-operation. |
Interim Orders
