We are consulting about changes to the rules we follow when investigating and acting on concerns about doctors.
We’re planning to make our processes simpler, more effective and give greater confidence in the independence of decisions made by panels – and we want to hear what you think.
Many of the proposals were covered in a consultation by the Department of Health (England) last year on changes to the Medical Act and have recently been approved by Parliament. We now need to carry out our own consultation to implement them.
Why we are consulting
We know complaints about doctors can sometimes take a long time to resolve. Our goal is to shorten the length of our investigations and hearings run by the Medical Practitioners Tribunal Service (MPTS) where we can, to reduce the time and stress for all involved.
At the same time we want to make sure we can take action to prevent a doctor from putting the safety of patients, or public confidence in doctors, at risk.
This consultation also marks the next stage in the development of the MPTS which we established in 2012. Although it is operationally separate from the GMC, the changes in our consultation will make the distinction between the investigation and adjudication of cases even more clear.
GMC consultationReforming our fitness to practise investigation and adjudication processes - a public consultation on changes to our rules
1. We have drafted new rules for the MPTS Committee. Do you agree with the arrangements for the MPTS Committee as set out in these rules?
Not sure
Do you have any comments on the proposal?
The composition/Terms of Reference for the Medical Practitioners Tribunal Service (MPTS) Committee seem reasonable. However there was no question about the move to the Medical Practitioners Tribunal/Interim Orders Tribunal rather than Fitness to Practice and Interim Orders Panel. Mostly this will not affect the decisions made or the process but there would need to be changes to the information provided to complainants, doctors etc to explain this.
This response has been informed by several of our lay advisers and they have raised some concerns about the consultation document itself and the way it has been presented which we hope will be helpful for future consultations. For example, an unnecessary visual impediment has been introduced by switching between black text on a white background to white text on a blue background. This, and the repetition of words such as “rule” (used 166 times over 49 pages), combined with arguably irrelevant precision and detail could alienate a lay person from the key issues.
Also page 18 of the consultation document includes the following text: “Annex 1 and articles 2(16), (25), (31) and (34) of annex 2 contain the proposed changes to rules 15, 20, 23 and 26 of the Fitness to Practise Rules.” This level of detail could potentially be omitted from a public consultation document such as this, and instead be included in an annex or technical edit. It obscures the key principle of whether the separation of functionality is appropriate in principle and in operational practice.
2. We propose making provision in the rules for the MPTS to be responsible for setting and publishing the criteria for appointing panellists and panel chairs. Do you agree?
Yes
Do you have any comments on the proposal?
Publishing the criteria for appointing panellists seems reasonable as proposals / criteria for appointment need to be made much more accessible to the general public/patients. It is currently very difficult to find relevant documentation and criteria, and this should be easily accessible if the MPTS is to build a positive reputation with the public/patients. Not publishing this could suggest a ‘closed shop’ and could undermine public confidence.
The circumstances under which the MPTS decides to use either a legal qualified chair or a chair and legal assessor needs to be clearly defined so that everyone understands the position.
3. We propose that where legally qualified chairs advise the panel on a question of law they will do so either in the presence of the parties or, where the parties are not present, they will include their advice in their decision. Do you agree?
Yes
Do you have any comments on the proposal?
Experience of other professional tribunals shows that no matter the effort to keep tribunals streamlined and focussed on facts, there is a need for legal exactitude/relevant advice as to powers.
The legally qualified chairs would need to be given significant training in the Rules and law associated with the work of the MPTS as it is likely that their legal practice and experience would be based in other contexts.
The arrangements for parties being able to challenge the advice of the legal assessor needs greater clarification – simply including the advice in the decision does not clarify that the parties will have the opportunity to challenge.
The medical profession, as well as the public, need to be made fully aware that the term lay (particularly when referring to the chair) refers to someone who has never been part of the medical profession but that they will be a professional lawyer and potentially quite different from a lay panellist with no legal training.
4. We propose that the MPTS should send the notice of the hearing and the GMC should send the notice of the allegation. Do you agree?
Yes
Do you have any comments on the proposal?
This would reflect the separation of function – however for a doctor being investigated and potentially stressed by the experience, efforts should be made to keep the process as simple as possible and the flow of mail/emails from the GMC and MPTS should be managed with some sensitivity. Attempts should also be made to minimise the number of points of contact the Doctor might require.
This change may require some time to be fully understood by doctors and patients so this should be factored in to any rule change.
5. Do you agree that we should change our rules to reflect our current practice of giving doctors at least 28 days’ notice of all matters relating to the hearing (including the time and venue)?
Yes
Do you have any comments on the proposal?
Rules should match current practice. Any circumstances in which it might be in the public interest for a lesser period of notice to be given need to be transparent.
6. We propose to remove the rule that provides that the MPTS should tell the GMC when an interim order is due to expire. Do you agree?
Not sure
Do you have any comments on the proposal?
We have received mixed responses on this – it has been suggested that given that the original order was made on the recommendation of the MPTS, they should retain responsibility not only for reviewing it every 6 months but also for requesting any proposed extension.
7. We propose clarifying the circumstances in which we can refer a doctor with panel undertakings for a review where the doctor does not agree to changes we want to make to their undertakings. Do you agree?
Yes
Do you have any comments on the proposal?
It would be helpful to further clarify the circumstances in which a doctor may be referred for a mandatory review, as this document does not provide clarity on this issue.
8 We propose making clear that a doctor with undertakings whose language skills either deteriorate or otherwise give rise to further concerns can be referred to a panel. Do you agree?
Yes
Do you have any comments on the proposal?
This needs transparency about who will make the decision and how the deterioration will be assessed.
9. We propose giving our hearings a more logical order, identifying a doctor at a hearing before hearing any legal argument. Do you agree?
Not sure
Do you have any comments on the proposal?
We have received mixed responses on this – to some it seems sensible, but others would request further explanation of the rationale for identifying a doctor before receiving legal argument.
Again the consultation document could be seen as confusing as this section uses “hearing” in a single sentence as both a noun and a verb.
10. We propose allowing both parties to make submissions on the facts before the panel decides which facts are true. Do you agree?
Yes
11. We propose removing the need to refer to transcripts of previous hearings in review and restoration hearings unless this is necessary. Do you agree?
Not sure
Do you have any comments on the proposal?
This would appear to be logical and help to streamline the process, with the inclusion of findings, decisions and outcomes from previous hearings seen as helpful. Transparency is required about who will decide whether the transcript is “necessary”, and who will review any decision in the case of disagreement.
Potentially this may impact on the writing of determinations at hearings. Panels may feel it is necessary to provide more detail – for example transcripts can give review panels information about the attitude/evidence of a Doctor without any need for making an observation in the determination. The change may result in panels wishing to convey something about this in the determination to make a subsequent panel aware of this.
12. We propose clarifying that the MPTS arranges recordings of panel hearings and the registrar arranges recordings of Investigation Committee hearings and that, on request, the MPTS or registrar (as the case may be) can provide a written record. Do you agree?
Yes
Do you have any comments on the proposal?
This seems reasonable as long as the circumstances in which a request would be refused or granted are made clear – and whether there is a right to challenge that decision.
13. We propose clarifying the terminology we use, in particular what we mean by ‘witness’. Do you agree?
Yes
Do you have any comments on the proposal?
Greater explanation of the basis for this question (without jargon heavy phrases) is required in the consultation document.
14. We propose allowing case managers and Investigation Committee members to adjourn hearings that are part heard when either party requests this. Do you agree?
Yes
Do you have any comments on the proposal?
It seems appropriate to do this provided all parties are able to have input into the date of a reconvened hearing.
15. We propose that, to protect the public, when the panel has adjourned a review hearing before it has made a finding of impairment, a panel should be allowed to extend a sanction until the panel can reconvene to consider impairment. Do you agree?
Not sure
Do you have any comments on the proposal?
It is not clear how this will operate in practice. If the FTP panel/tribunal is told about the specifics of an interim order it may impact on their decision making or they may have a different view about the nature of the order. The parties would need to be able to make submissions on any order.
16. Do you agree with the circumstances we have set out in the draft rules for when case management decisions will not be treated as binding?
Not sure
Do you have any comments on the proposal?
The circumstances are defined as “material change in circumstances” or “not in the interests of justice” – however they are not expanded on and it is not clear who would make a judgment about this and whether the parties could challenge a decision.
17. Do you agree with our proposals for awarding and assessing costs, as outlined in the draft rules?
Not sure
Do you have any comments on the proposal?
This seems a sensible approach which could streamline and bring closure for parties. However there is a need to be aware of the impact of costs awarded on a Doctor who is about to be suspended/erased when considering amount and timescales of payment. The scale of charges should be very clear and should be set at a level which reflects the actual costs rather than being punitive. Panels/tribunals would need very clear guidance and training.
18. When we make provisional enquiries to decide if we need to carry out an investigation, we propose removing the need to tell a doctor’s employer. Do you agree?
Yes
Do you have any comments on the proposal?
The principle is logical and fits with the intention of the reforms to process and procedure. There is a danger that if provisional enquiries are delayed or slow, ie due to overload of work, illness or absence of key parties, a more serious incident due to the Doctor being unfit to practice could occur. There should be a specific time limit on this period of enquiry after which the employer must be informed (although this is likely to happen in practice anyway). Doctors should be clearly informed as to whether their employer will be told.
19. We propose introducing a process for a new type of non-compliance hearing to deal with substantive non-compliance with assessments or requests for information required in order to enable us to investigate concerns. Do you agree with that process?
Yes
20. Do you think any of our proposals will adversely affect people from groups with protected characteristics? This could include doctors, patients and members of the public.
Not sure
If you answered ‘yes’ to the question above, please tell us which proposals and what you think the impact might be.
Doctors who are unrepresented, from overseas or with health could find the process more legalistic and therefore potentially more intimidating.