The government plans to strip the the GMC of its power to appeal decisions made by the Medical Practitioners Tribunal Service (MPTS) after the Williams review warned its appeals had created 'fear and mistrust' among doctors and were 'deterring reflection and learning from errors to the detriment of patient safety'.
The decision to strip the GMC of its power of appeal followed the damaging, high-profile case of Dr Hadiza Bawa-Garba - struck off after a GMC appeal against a tribunal ruling, but later reinstated after judges found the tribunal decision was appropriate.
However, the government has yet to pass legislation to remove the GMC's power of appeal, and the regulator has continued to use it - sparking fury from doctors who say its behaviour shows it is incapable of learning from its mistakes.
The GMC has confirmed to GPonline that it is currently appealing four tribunal decisions. In each case, the regulator is asking the Court of Appeal to replace an MPTS decision with a more severe sanction. In three cases it is recommending - as it did in the Bawa-Garba case - that suspension be substituted for erasure from the medical register.
A fifth GMC appeal seeking stricter sanctions for a doctor following a fitness-to-practise tribunal was quashed earlier this week. Commenting on the Raychaudhuri vs GMC ruling, Lord Justice Bean said that, while the GMC’s discretion to appeal is a wide one, ‘it is a discretion to be exercised with restraint where it involves a challenge to a finding of fact in the practitioner’s favour’.
Doctors have called on the government to remove the regulator’s right to appeal as a matter of urgency - but the government has to date given no timescale for implementing the reform.
A GMC spokesperson said that, although the regulator is keen to regain doctors' trust following the Bawa-Garba case, appeals were ‘necessary’ to adequately protect patients and ‘maintain the public’s confidence in the profession’.
Power of appeal
A spokesperson for the BMA said: ‘The BMA has long held that the GMC should not be able to appeal fitness-to-practise decisions, and so we were glad when the Williams review into gross negligence manslaughter listened to our concerns and recommended that this right be withdrawn.
‘Fitness-to-practise processes are incredibly stressful for doctors and the perception of a risk of double jeopardy can only exacerbate this problem. The Williams review also noted that the impact of the right of appeal on doctors’ engagement with the GMC has deterred reflection and learning from errors to the detriment of patient safety, and so we would expect the GMC to be extremely cautious about making any decisions to appeal.
‘We now urge the government to now move swiftly to implement the review’s recommendations, which the health and social care secretary accepted in full, to prevent the GMC continuing this practice.’
Campaign group The Doctors’ Association UK (DAUK), who last month called for an investigation into the GMC’s ‘aggressive pursuit’ of Dr Bawa-Garba, said the regulator had used its right to appeal ‘in every case to impose harsher conditions or sanctions on doctors’, adding that the GMC has ‘failed to appropriately reflect on its ongoing use of appeals’.
Dr Rinesh Parmar, DAUK treasurer, said: ‘Doctors’ confidence in their regulator the GMC has been severely damaged in the wake of the Bawa-Garba case. This [is] evident with thousands of doctors signing letters to the GMC throughout the case and following Dr Bawa-Garba’s appeal.
‘The actions of the GMC during the case and its desire to continue with these appeals further damages the relationship between doctors and their regulator. The GMC is seen as an organisation that is unable to appropriately reflect on its actions, learn from mistakes and remediate going forwards when seeking to impose harsher conditions to those determined by an independent tribunal.
‘DAUK will be calling on the government to confirm when it will be upholding the recommendations of the Williams review and stripping the GMC of its right of appeal.’
Dr Rob Hendry, medical director at the Medical Protection Society (MPS), said: 'A gross negligence manslaughter conviction should not automatically mean that a doctor who has remediated and demonstrated insight into their clinical failings is erased. The removal of the GMC’s power to appeal MPTS decisions - a recommendation by Sir Norman Williams which was accepted by the government - must also take effect quickly.
'While we await the introduction of the necessary legislation, the GMC should publicly commit to stop using their power of appeal immediately. This would be a real statement of intent from the GMC as it seeks to regain the trust of the profession. Swift implementation of the William’s review recommendations, and timely completion of the GMC review led by Leslie Hamilton, will be key in rebuilding confidence.'
The GMC spokesperson said: ‘We’re listening to doctors and working hard to address concerns brought to light by Dr Bawa-Garba’s case through a programme of work to better support the profession.
‘But we must also continue to take action when necessary if we believe a tribunal decision might not adequately protect patients, or maintain the public’s confidence in the profession.
‘We never take the decision to appeal a tribunal finding lightly. The Williams review found that we had used our powers appropriately, with a high rate of success, and in so doing improved patient safety’.
GMC appeals have been upheld in 18 out of 24 cases since 2015.
A DHSC spokesperson said: ‘The government has accepted all recommendations from the Williams review [and] the options for delivery of those recommendations are currently being explored. Up until legislation comes into effect, the GMC will still have the right to appeal MPTS decisions.’