Applying for the Withdrawal of GMC MPT FTP Proceedings – Rule 28

Applications for Withdrawal of GMC Allegations Pursuant to Rule 28Rule 28 Applications to Withdraw GMC Allegations

If there is a material change of circumstances, it may be possible for a fitness to practise hearing scheduled to be heard by a Medical Practitioners Tribunal (MPT) to be withdrawn on all or some of the allegations, pursuant to Rule 28 of the
General Medical Council (Fitness to Practise) Rules Order of Council 2004 (the ‘2004 Rules’) that govern the GMC/MPTS fitness to practise process. Rule 28, sub paragraphs (2), (3) and (4) read as follows:

… (2) “Where after a matter has been referred to a Medical Practitioners Tribunal or Interim Orders Tribunal and before the opening of the hearing before the Tribunal, it appears to the Registrar that a matter (or part of it) should not be considered by a Medical Practitioners Tribunal or that an Interim Orders Tribunal should not consider making an order, the Registrar may refer the matter to a medical or lay Case Examiner for a decision as to whether the matter (or part of it) should be withdrawn.

(3) Where paragraph (1) or (2) applies, a Case Examiner may decide that—

(a) all or part of the matter referred to in that paragraph should be withdrawn; or

(b) in the case of a matter that has been referred to a Medical Practitioners Tribunal, other than a non-compliance matter, the matter should be referred for consideration by a medical and lay Case Examiner under rule 10 [undertakings] or 11 [warnings].

(4) Where a decision is taken under paragraph (3) of this rule, the Registrar shall as soon as is reasonably practicable, serve notice in writing upon the practitioner and the maker of the allegation (if any), and shall give reasons for the decision in the notice.

The GMC has produced guidance for the decision-makers tasked with considering Rule 28: GMC Guidance on Rule 28 Applications The guidance anticipates that the application might be made by a doctor:

“The question of possible withdrawal may arise either from an application by the doctor…”

Paragraph 7 of the guidance states:

“Although the criteria for withdrawing all or part of a matter are broadly drafted, withdrawal will normally only be appropriate where new information becomes available which shows that it is no longer necessary or appropriate for the investigation committee or a tribunal to consider all or some of the allegations.”

In the first instance, a doctor must write to the Registrar to request a review purusant to Rule 28. Submissions will need to have a concise summary, followed by a detailed allegation by allegation analysis, include commentary on why each allegation should  not proceed to a hearing, while referring to the evidence available (including new evidence). In particular, in certain classes of cases evidence of current fitness to practise, evidence of remediation and insight will be needed, whoch should be marshalled, paginated and indexed appropriately.

On receipt of the doctor’s submission, if the Registrar so directs, the application will the be scrutinised by the GMC’s case examiners. Such an application should be made with sufficient time (pre-MPT hearing) for the decision to be made by the case examiners. The process can take a number of weeks. Good quality evidence and focussed submissions will be essential for a doctor to be successful.

Not all classses of cases will be considered suitable for Rule 28 disposal. If there is a need to mark the seriousness of a departure from good medical practice arising from the allegation, the case will be unlikely to be withdrawn. The same would apply in cases where there are significant and material factual issues to be decided through a credibility assessment of witnesses for the GMC or called on behalf of the doctor, including the doctor’s credibility. In cases concerning a lack of competence, it may be more amenable for resolution to be achieved by way of the Rule 28 route.

If you are a doctor who would like assistance on making a Rule 28 application to the GMC, contact Doctors Defence Service without obligation and in strict confidence.