GMC should lose right to appeal medical tribunal decisions, says BMA

The GMC should be stripped of its power to appeal medical tribunal decisions, the BMA has warned in response to a government-backed review of gross negligence manslaughter (GNM) in healthcare.

The call comes just months after Dr Hadiza Bawa-Garba was struck off after the GMC appealed against a tribunal's decision to impose a 12-month suspension.

The BMA has also warned that medical tribunals should not be barred from forming their 'own view of the facts and public confidence considerations' even in cases where a prior criminal conviction is involved.

In the case of Dr Bawa-Garba, the GMC said it appealed against the medical tribunal decision on the basis that the tribunal 'wrongly revisited the findings of the criminal court and the basis upon which the jury convicted Dr Bawa-Garba'. Because it 'reached its own less severe view of the degree of Dr Bawa-Garba's personal culpability when considering sanction...the tribunal failed to comply with the law'.

GMC appeal

However, deep concern across the medical community about the impact of the GMC appeal led health secretary Jeremy Hunt to announce a rapid review by his senior health adviser Sir Norman Williams.

The BMA response to the review calls for measures including the GMC losing its power of appeal against tribunal rulings, legal protection for CPD and appraisal documents, a specialist police unit to investigate GNM cases in healthcare, special training and guidance for expert witnesses and 'human factors' guidance for prosecutors.

Any GNM cases in healthcare should be referred to the courts 'only after consultation with the chief coroner' and with the personal authorisation of the director of public prosecutions, the BMA says.

Making the case for the GMC to lose its power of appeal, the BMA says: 'The BMA has consistently opposed and remains deeply concerned about the right of the GMC to appeal against fitness to practise decisions. We continue to believe that this right risks undermining doctors' confidence in the independence and fairness of the Medical Practitioners Tribunal Service (MPTS).'

Fitness to practise

A perception that doctors face a risk of 'double jeopardy' risked adding to the stress of fitness to practise procedure. Pressures on GPs undergoing investigation are well-documented, with GP Dr Katie Bramall-Stainer warning in 2015 that GPs facing this process faced a 13-times higher risk of suicide.

The BMA warned that it was 'concerned about the extent to which the court’s judgment could restrict the ability of a medical practitioners tribunal to form its own view of the facts and of any public confidence considerations in cases involving a criminal conviction.

'We have previously expressed concern that the public confidence criterion could lead to "trial
by media" and called for guidance that properly relates "public confidence" to the GMC’s
overarching objective of public protection.

In earlier responses to the Williams review, the GMC called for legal protection for doctors' reflective notes - a point echoed by the BMA.

The Medical Protection Service (MPS) called for the legal bar in GNM cases to be raised to avoid criminalising good doctors for mistakes, while the Medical Defence Union warned that doctors were 'significantly overinvestigated' for manslaughter.

A GMC spokeswoman said: ‘We never take the decision to appeal a medical practitioners tribunal finding lightly, and our record on appeals brought to date indicates we are using it appropriately.

‘An appeal will only be issued where, after consideration of all relevant circumstances, we conclude that the decision of the tribunal was insufficient to protect the public, which includes a failure to take appropriate action to maintain public confidence in the medical profession.’

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