GMC MPTS Review Hearings

Review Hearings in GMC/MPTS Cases

There are two types of review hearing held at the MPTS. The first relates to reviews of interim orders (called Interim Orders Tribunal (IOT) hearings), and the second relates to substantive fitness review sanctions. To read more about IOT reviews, see our dedicated article on GMC/MPTS IOT Proceedings. The remainder of this article examines Reviews in GMC Medical Practitioner Tribunal substantive fitness to practise hearings.

At a fitness to practise hearing, where a doctor’s fitness to practise has been found to be currently impaired, and where the tribunal had imposed an interim order of conditions or suspension, there will be a review hearing. Impairment might be due to misconduct, deficient performance, convictions and cautions.

At the review hearing the doctor must present evidence relating to their current fitness to practise. They must look at the past factual history, and look at what the pubic and profession would expect the doctor to do to be able to perform unrestricted in the future. The doctor can present evidence in documentary and oral form, and witnesses can be of assistance in some instances. Medical evidence might also be required.

Where a doctor’s fitness to practise is found to be still impaired a further sanction can be imposed, which could be a period of suspension, conditions, or in some cases erasure. It is therefore very important that a doctor prepares well for a GMC/MPTS Review Hearing, to be able to evidence their fitness to practise.

The tribunal will usually have listed the types of evidence that a doctor might choose to present, by way of guidance, which would be of assistance to the tribunal tasked with reviewing the impairment. Some doctors fail to appreciate how important it is to follow through on that guidance. Further, there are often a number of other steps that a doctor can take to increase their prospects of success at a hearing.

So what does a doctor need to prove?

The onus is on the doctor to show that their fitness to practise is no longer impaired. This is called the persuasive burden.

In Abrahaem v GMC [2008] EWHC 183 (Admin), the judge opined (at para 23) that:

“In Practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed past impairments“.

It should also be noted that at paragraph 163 of the Sanctions Guidance (2018) holds that:

“It is important that no doctor is allowed to resume unrestricted practice following a period of conditional registration or suspension unless the tribunal considers that they are safe to do so“.

Such principles will influence the decision-making of the tribunal and a doctor must therefore ensure that they present the appropriate evidence needed to satisfy such concerns that may arise from a long period away from unrestricted practice.

Does a Doctor have to Accept the MPT/GMC Tribunal’s Findings?

Where a doctor does not accept the past findings of a MPT tribunal, it will create a difficulty for the doctor to show developed or developing insight. However, it has been held in Blakely v General Medical Council [2019] EWHC 905 (Admin) (April 2019) that a doctor does not necessarily have to accept that they did conduct themselves as alleged, though this is in relation to substantive first instance FTP tribunal hearings, rather than reviews. In some ways this judgment is confusing but it directs the tribunal and lawyers to focus on a number of themes that show that the doctor understands the wider ramifications of such conduct, even if they maintain their denial. This case might possibly cause tension within the tribunal process where a doctor denies wrongdoing at a review hearing, but if the appeal period has long expired the case law probably has less relevance. See also: Amao v Nursing and Midwifery Council [2014] EWHC 147 (Admin) (January 2014) and Yusuff v General Medical Council [2018] EWHC 13 (Admin). (January 2018). The potential key, it seems, is for a doctor to explore what the public and profession would make of the doctor’s conduct, as found proved, and to evidence learning and reflection that would reassure others that the risk of repetition is low.

In the case of Sawati v General Medical Council [2022] EWHC 283 (Admin), the court examined the case law on what is called ‘rejected defences’ (75-110). The appeal court noted (at para 90) that:

1. 1. GMC v Khetyar [2018] EWHC 813 (Admin) was another sexual impropriety case, in which the Court expressed the conundrum this way:

‘Of course, no sanction was to be imposed on him [Dr Khetyar] for his denials as such; however insight requires that motivations and triggers be identified and understood, and if that is possible at all without there first being an acceptance that what happened did happen it will be very rare, and any assessment of ongoing risk must pay close attention to the doctor’s current understanding of and attitude towards what he has done.’

These cases were not review hearings, but illustrates the difficulties that doctors face when not admitting the wrongdoing found proved. The appeal judge in Sawati went on to note:

95. Subsequent, very recent, cases have, however, continued to illustrate the fact-sensitivity, and sometimes the difficulty, of solving the conundrum. In Towuaghantse v GMC [2021] EWHC 681 (Admin) the charge against the doctor was of clinical failings leading to the death of a baby. A coroner’s inquest had made a number of findings adverse to, and criticisms of, the doctor. The Tribunal found little evidence to suggest that he had come to a full understanding and acceptance of what had caused the tragic outcome, in particular by failing to accept any of the coroner’s findings. That lack of insight led to a finding of limited capacity to remediate, which critically informed the decision on impairment and hence strongly influenced the decision on sanction.

Also, at para 106, the appeal court in Sawati observed:

‘106. Before a rejected defence is held to be relevant evidence of ‘lack of insight’, it is necessary to consider what other evidence of insight or lack of insight is present. There are cases, including some of the sexual impropriety cases, where being ‘in denial’ up to and including sanction proceedings is a richly evidenced course of conduct, in which a range of supportive and restrictive interventions have demonstrably failed to bring a doctor to a proper, fair and reasonable acknowledgment of the reality of their established problems and failings. At the other end of the spectrum, there are cases in which the only evidence of failure of insight seems to be robust defence at the fact-finding stage. Damascene conversions aside, a rejected defence which on a fair analysis adds to an evidenced history of faulty understanding is more likely to be relevant fairly to sanction than one said to constitute such faulty understanding in and of itself.’

(Sawati: February 2022)

The Sawati case was an appeal relating to a substantive fitness to practise hearing, rather than a review hearing, but the propositions will have some bearing on reviewing tribunals, all the same. A doctor who is attending a review hearing should therefore carefully craft their evidence if they are not going to admit their past conduct.

In the appeal case of Professional Standards Authority v The Health and Care Professions Council and Doree [2017] EWCA Civ 39 it was stated that:

“Whether a registrant has shown insight into his misconduct, and how much insight he has shown, are classically matters of fact and judgment for the professional disciplinary committee in the light of the evidence before it. Some of the evidence may be matters of fact, some of it merely subjective. In assessing a registrant’s insight, a professional disciplinary committee will need to weigh all the relevant evidence, both oral and written, which provides a picture of it.” (January 2014)

The doctor will need to demonstrate developed insight in relation to the past proved or admitted allegations. This often requires a doctor to go on further courses on subjects related to the transgressions. Remember, the reviewing tribunal will want to see recent evidence of course work, reflection, and work with a tutor in some instances. Wide reading is also encouraged, and access to Google Scholar can assist in this regard. It is generally free to use.

Maintaining Clinical Competence while Suspended (or where a doctor is unable to get a job while under conditions)

The doctor must also show that they have maintained their clinical knowledge and skills insofar as is possible, in relation to their clinical practice, too, while they have been the subject of an Order. Tribunals will wish to satisfy themselves that a doctor is going to be clinically safe to practise, and it will therefore be helpful for a doctor to compile a back to work plan, to show engagement, even in cases unrelated to clinical competence.

If a doctor has been out of practise for a while, it may be necessary for them to undertake a clinical attachment, attend additional core and specialist courses (in medicine) in person and online (over and above those normally taken for a review), and to provide more extensive reflections on the past failings and on the updating that the doctor has done to show the clinical relevance and professional relevance of such study. A clinical attachment should be undertaken in the UK, in most instances, so that the doctor can evidence an understanding of British clinical governance principles and UK clinical practice standards.

Deficient Performance

Where a doctor has been performance assessed and has been found to be deficient in their skills and knowledge, they will need to do online CPD, attend face to face seminars and courses, and get a job in a suitable environment whereby they can evidence further learning in a supportive environment. The hospitals in the UK have a specific clinical governance system, which acts as a safeguard to those doctors in difficulty. Overseas practice, while it can be evidentially relevant, will often be viewed as insufficient to reassure the GMC / MPT panel that the doctor has overcome their suboptimal practice.

Strong evidence is needed of competence, knowledge and skill, and the GMC will often arrange for a doctor to undergo a further assessment, so as to evidence progress, or not, as the case may be. If the doctor can evidence progress, any conditions might be relaxed or revoked. See our page dedicated to the subject of GMC performance assessments for more information.

Health Cases

In cases concerning physical or mental ill-health (GMC health cases), expert reports and local clinicians’ reports may be of assistance. In some instances, a doctor will need to show that they have managed a health condition, such that their fitness to practise is no longer impaired, because their condition will no longer impact on their work as a doctor. Or, to be able to persuade a tribunal to move from a suspension order to a conditions of practise order, or agree undertakings.

Reviews are not straightforward matters and we would recommend that a doctor takes legal advice when preparing for a review hearing, and that their bundle of documents is reviewed regularly, so as to improve the evidential weight of the available evidence.

A review tribunal has the power to erase or impose other orders, and so a doctor should do their utmost to provide proper evidence in good time. Witnesses can be called to evidence learning or in relation to the character, or the health of the doctor. Again, this needs careful planning, and good quality statements.

Misconduct

Misconduct as a doctor means having fallen below the standards as set out in the code of conduct for doctors: Good Medical Practice. A doctor would be expected to remediate their shortcomings, apologise, and show evidence of developed insight.

Review on the Papers

In some instances, the GMC and doctor can come to an agreement, on paper, about the order that should be made at a Review. The proposal is then placed before a tribunal for consideration, without the attendance of the doctor and the GMC. If the tribunal agrees to the proposed order, it will come into effect. The order might be a revocation of the current order, or a continuation of the current order, or a variation of the current order.

A review on the papers is available in IOT cases, and substantive review cases. The GMC has published guidance on this procedure: Review on the Papers (ROPs)

See also: Medical Practitioners Tribunals – Guidance to staff on assessing suitability of cases for a review on papers (ROP)

Changes, Revocation and Early Revocation

Either at an early review, or the listed substantive review, the tribunal has the power to change the suspension or conditions to the other, or revoke them altogether.

Early revocation is by way of Section 35D(5)(d) of the Medical Act (1983) as amended.

Appeals

Doctors Defence Service advises and represents doctors in relation to and at GMC/MPTS IOT and MPT Review Hearings. For more information, contact us on 0800 10 88 739