Proportionality of decision making in GMC and MPTS cases
Decision making of the GMC officers and MPTS tribunal members who are decision-makers must act in a manner that is proportionate to the issues they are considering. The courts have always looking at whether a decision (and its impact) are manifestly excessive, but the concept of proportionaility is something imported from concepts of European law on human rights by way of the Human Rights Act 1998. Public body decisions should be proportionate for them to be lawful. Proportionality is therefore central to the question of whether a decision-maker came to an appropriate and justifable decision.
In Colgan v The Kennel Club, Case No. 01/TLQ/0673 (October 2001) the court cited De Freitas v permanent Secretary [1999] 1 AC (at 80), that (1): the legislative objective is sufficiently important to justify limiting a fundamental right; (2): the measures designed to meet the legislative objective are rationally connected to it; (3) the means used to impair the right or freedom are no more than is necessary to accomplish the objective. In Colgan (a case relating to disciplinary processes of the Kennel club), it was held that ‘in order to apply the proportionality test here, it is necessary to replace the words ‘the legislative objective’ with ‘the objective or objectives of the disciplinary procedures.’ This case has broader relvance to all regulators, including the GMC.
In the GMC / MPTS Sanctions Guidance, (version from Nov 2020) decision-makers are reminded (at page 12, para 20 to 22) to adhere to the following guidance:-
- 20 In deciding what sanction, if any, to impose the tribunal should consider the sanctions available, starting with the least restrictive. It should also have regard to the principle of proportionality, weighing the interests of the public against those of the doctor (this will usually be an impact on the doctor’s career, eg a short suspension for a doctor in training may significantly disrupt the progression of their career due to the nature of training contracts).
- 21 However, once the tribunal has determined that a certain sanction is necessary to protect the public (and is therefore the minimum action required to do so), that sanction must be imposed, even where this may lead to difficulties for a doctor. This is necessary
to fulfil the statutory overarching objective to protect the public. - 22 The doctor may have had an interim order to restrict or remove their registration while the GMC investigated the concerns. However, the tribunal should not give undue weight to whether a doctor has had an interim order and how long the order was in place. This is because an interim orders tribunal makes no findings of fact, and its test for considering whether to impose an interim order is entirely different from the criteria that medical practitioners tribunals use when considering an appropriate sanction on a doctor’s practice.
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