It's now heading towards 5 years since the review by Prof Sir Norman Williams, in the wake of the now-notorious case of Dr Bawa-Garba, recommended that the GMC should no longer be able to appeal against the findings of doctors' disciplinary hearings by the Medical Practitioners Tribunal Service (MPTS).
A further independent report in 2019, chaired by former cardiac surgeon Leslie Hamilton, backed the Williams Review findings and said that removing the GMC's right of appeal was "an important step towards rebuilding the profession's relationship with its regulator", particularly in cases like that of Dr Bawa-Garba, in which doctors seemed to be held personally responsible for systemic failures.
Culture of 'Toxic Fear'
After the Dr Bawa-Garba case, the GMC was said by the British Medical Association (BMA) to have "lost the confidence of doctors". The Hamilton review called on the GMC to end the 'toxic fear' that the health system was geared to "apportion individual blame rather than to learn from events and prevent future harm".
The MTPS operates separately from the investigatory role of the GMC but is legally a statutory committee of the GMC and accountable to the GMC Council, as well as the UK parliament. The dual sanctions potential of the MPTS and the GMC has been described as leaving doctors facing the 'double jeopardy' of being 'tried twice' for the same offence, with MPTS decisions potentially being overridden by the GMC taking a case to a higher court.
Appeals Continue Despite Recommendations
Although the GMC "welcomed" the Williams review's conclusions, the legislation to effect this – involving changes to the Medical Act – has yet to be put in place, despite a Government commitment by former Health Secretary Jeremy Hunt 4 years ago. Meanwhile, the GMC has continued as if nothing had changed. According to a Freedom of Information (FoI) Act disclosure obtained by the Medical Protection Society (MPS) last summer, it has instituted at least 23 such appeals since the Hunt committed to ending the practice in June 2018 – with the most recent in December 2022.
Nonetheless, the regulator has promised to be 'more compassionate' in its approach to investigations and to open full investigations only 'where necessary'. This followed a further notorious case in which the GMC had accused Dr Manjula Arora of having 'lied to obtain a laptop', in a case that hinged upon the difference between Dr Arora – a non-native English speaker – having been 'promised' the computer in question and her superior having merely 'noted her interest' in getting one. The incident resulted in the GMC being labelled 'not fit for purpose'.
According to the BMJ at the time, successive GMC leaders had failed to implement the recommendations of multiple reviews and inquiries, and thus 'failed to deliver' promised reforms. Legislative changes were needed to force the GMC to become accountable, said the BMJ, and the organisation faced a stark choice of 'adapt or die'.
However asked by Medscape News UK whether it had any plans to drop its right to appeal MPTS sanctions, a GMC spokesperson said: "We have made it clear that we are not opposed to the decision of removing our right of appeal. The Government will now decide how and when to bring in these changes.
"The fact that the Government has stated it intends to legislate to remove it does not allow us to ignore our statutory duties.
"We would be acting unlawfully if we did not give due consideration to the exercise of our powers to appeal a decision where the decision could reasonably be considered insufficient to protect the public."
Over 4 Years Since Government Commitment
Despite this, Dr Sabira Hughes, medicolegal consultant at the MPS, told Medscape News UK: "MPS has repeatedly raised concerns that the GMC continues to appeal MPTS decisions despite the Government's 2018 commitment to remove this power, with FOI data showing 23 appeals were lodged in the 4-year period between June 2018 and June 2022.
"The GMC's power to appeal has created distrust between the medical profession and the regulator and has contributed to a culture of fear. Fitness-to-practise proceedings are stressful and lengthy enough for doctors, without the added worry that the GMC can seek to override the decision made by the MPTS if it does not agree.
"In July 2022 the DHSC confirmed its intention to prioritise legislation to remove these powers in 2023, alongside legislation that will bring physician associates and anaesthesia associates into statutory regulation.
"This commitment was welcomed, but it is vital that the DHSC now honour it. It has been over 4 years since the Government agreed that the GMC should have this power removed, following the Williams review. Doctors will have this hanging over their heads until the relevant legislative changes are made to the Medical Act."