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Reforming fitness to practice - changes to MPTS hearings

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Corporate crime analysis: Reviewing changes to fitness to practise procedures, Carl Johnson, partner at Stephensons Solicitors, suggests that granting a statutory footing to the Medical Practitioners Tribunal Service (MPTS) appears to be a continuation of a theme which started with the proposal for its establishment.

Original news
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, LNB News 29/01/2015 154

The independence of decision-making at the adjudication stage of fitness to practice procedures involving doctors is enhanced and protected by placing the MPTS on a statutory footing. A new overarching objective for the General Medical Council (GMC) is also introduced.

What changes are being brought into force from 31 December 2015 to the adjudication process?
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, SI 2015/794 introduces a number of changes to the GMC's fitness to practise regime.

The key changes will be as follows:

  • the MPTS, which was established in 2012, will be placed on a statutory footing as a statutory committee of the GMC. Fitness to Practise Panels will become known as 'Medical Practitioners Tribunals' and interim orders panels will become known as 'Interim Orders Tribunals'
  • MPTS will have increased case management powers and will have the power to make case management directions which are binding on the parties
  • tribunals will have powers to draw adverse inferences and/or exclude evidence where either party fails to comply with case management directions
  • tribunals will have the power to award costs where directions have not been complied and the tribunal considers that either party or representative has acted unreasonably
  • the GMC will have right of appeal against MPTS decisions

Why are the changes being made? Are they likely to be effective in achieving their objectives?
The changes follow a consultation by the Department of Health, the stated aim of which was to achieve greater separation between the investigation and adjudication functions of the GMC's fitness to practise regime. Perhaps unsurprisingly 52% of respondents to the consultation opposed establishing MPTS as a statutory committee of the GMC and preferred the establishment of an independent body to deal with the adjudication function. Notably the Professional Standards Authority (PSA) for health and social care expressed concerns about whether the proposal would achieve the aim of greater separation.

73% of respondents to the consultation agreed with the proposals for MPTS to be able to make binding case management directions, draw adverse inferences and award costs in the event of unreasonable behaviour. His honour David Pearl, chair of the MPTS, has since its establishment, called for tribunals to have greater power to enforce directions and take action where they are disregarded. This is to ensure that fitness to practise cases proceed more effectively and fairly.

It is expected that these proposals will achieve that objective as one would expect such powers to focus the minds of practitioners when acting for doctors before tribunals. However, it will be interesting to see how MPTS uses these powers against the significant proportion of doctors who represent themselves at hearings. These powers could potentially give rise to arbitrary decisions against unrepresented doctors who are unfamiliar with the procedures.

70% of respondents opposed the proposal for providing the GMC with a right of appeal against fitness to practise decisions. The Department of Health's stated policy intention is 'to enable the organisation best placed to challenge a decision about a doctor's fitness to practise to do so where it is felt that the outcome does not sufficiently protect the public'.

A number of concerns have been raised about this proposal, including:

  • the risk of undermining the PSA, which currently has a statutory right to challenge fitness to practise decisions
  • the risk of undermining MPTS itself if the GMC challenges its decisions
  • implications towards practitioners in terms of costs and uncertainty
  • issues of operational independence, given that MPTS will be established as a statutory committee of the GMC

What practice effects will these changes have? What should lawyers involved in these hearings do to prepare for the changes?
It is anticipated that there will not be any great change where cases have been properly prepared and directions have been complied with. Practitioners will need to ensure that they and their clients avoid behaving in such a way that could easily be criticised as unreasonable. However, this is already a key strategic consideration in professional disciplinary work where cooperation and engagement with proceedings can have a marked impact on the overall outcome.

It will be important to engage with the case management process to ensure that the directions which are agreed are workable and feasible.

Issues may arise with difficult clients who are slow to provide instructions and evidence and reluctant to engage. For example, cases involving doctors with health issues who may not fully engage with proceedings will need to be carefully handled.

How does all this fit in with other developments in this area?
Granting a statutory footing to MPTS appears to be a continuation of a theme which started with the proposal for its establishment. While the establishment of a truly independent tribunal has not yet taken place, this may ultimately prove to be the case in years to come. This may become a topical issue again if the tribunal's new powers appear to be used in an arbitrary way against practitioners--especially if the GMC is felt to escape punishment where its lawyers have failed to adhere to case management directions.

The use of the GMC's right of appeal will likely be the subject of considerable scrutiny. If the GMC is viewed to be using its power in an arbitrary way and simply seeking to appeal in all cases where their lawyers are aggrieved by the decision, one would expect there to be widespread criticism, from practitioners and the courts alike. It will also be interesting to see how the GMC's right of appeal overlaps with the PSA's power to challenge decisions, particularly if there is disagreement between the two over the suitability of a decision made by MPTS.

The least controversial of the proposals is perhaps the strengthening of MPTS' case management powers. The GMC's fitness to practise regime has arguably been less robust than those used by other regulatory bodies. For example the Conduct and Competence Committee of the Health and Care Professions Council (HCPC) will, in certain cases, refuse to admit evidence not served in accordance with its standard directions where prejudice may be caused to one of the parties.

In other sectors outside of healthcare, such as accountancy and legal services, the use of strictly enforced directions is more widespread, as are costs orders. Orders for costs are common features of cases before tribunals such as the Solicitors Disciplinary Tribunal and the disciplinary committees of the Association of Chartered Certified Accountants and the Institute of Chartered Accountants in England and Wales--in these cases costs orders are used to reimburse the regulator for the costs involved in investigating and presenting a case. In the case of the MPTS, the restriction of costs orders to circumstances where a party or representative has acted unreasonably suggests that such orders will be used as a deterrent rather than being a regular feature of fitness to practise hearings.

Carl Johnson is a partner in the firm's regulatory department specialising in professional discipline and regulation. He has experience of advising on proceedings brought by a range of regulatory bodies including the GMC, General Dental Council, Nursing and Midwifery Council, and the HCPC.

Carl was interviewed by Kate Beaumont for Lexis Nexis.