On 11 June 2012, the Medical Practitioners' Tribunal Service (MPTS) was launched to provide an impartial adjudication function for doctors as part of the GMC's fitness to practise reforms.
The MPTS, whilst being part of the GMC, is now operationally separate to the GMC's complaint handling, investigative and case presentation processes.
As part of the GMC's reforms, from 14 May to 6 August 2012 a consultation - The Future of adjudication: making changes to our fitness to practise rules and our constitution of panels and Investigation Committee rules - took place, provoking a massive response from doctors and those working in the healthcare sector.
The aim of the consultation was to 'make the pre-hearing and hearing procedure shorter, reducing the stress for all involved' and stated that the GMC wanted 'to make the Rules simpler and more flexible'.
The first giant step in this process took place on 8 May 2013, with the GMC (Fitness to Practise and Constitution of Panels and Investigation Committee) Amendment Rules 2013 coming into force. These make changes to the GMC Fitness to Practise Rules 2004, and constitute the first major shake up of the GMC's procedures since the launch of the MPTS.
Here, we offer a summary of the changes now in place as a result of the new Rules.
Fitness to Practise Rules
Under amending Rule 2 (3), which amends Rule 4 of the old rules, there is no longer a requirement for the GMC to notify doctors when a complaint is closed on the ground that it does not raise a question of impairment of fitness to practise.
In relation to the Investigation Committee, under the old rules, the committee had to consider whether evidence to be admitted at a hearing of this nature was desirable to enable it to discharge its functions. Under amending Rule 2 (4), which amends Rule 11(7), this requirement has been removed in relation to documentary evidence, although it remains in relation to oral evidence.
Witness statements will now stand as evidence in chief, removing the need for examination in chief. The Investigation Committee, the Fitness to Practise Panels and the Interim Orders Panels, must now accept witness statements as evidence in chief under amended Rule 34 (11) unless the parties agree or a direction is made by a case manager or where the committee or panel decides otherwise. If one of the parties intends to apply for a witness to give evidence in chief orally, notice of this application must be given.
Under amending Rule 2 (6) which amends Rule 17 (2) of the old rules, there is no longer a requirement for the allegations to be read out at the beginning of the hearing, but the panel chair must now seek submissions from the GMC's Presenting Officer as to whether or not he/she wishes to apply for the allegations to be amended in any way.
Under the old rules, a doctor could make a 'half-time' submission to a Fitness to Practise Panel, after the GMC had presented its evidence, arguing that there was insufficient evidence to find the allegations proved or to support a finding of impairment of fitness to practise. Under amending Rule 2 (6) (b), which amends Rule 17 (2) (g), the doctor may make submissions that there is insufficient evidence to find some or all of the facts proved and that the hearing should not proceed any further as a result.
The formal requirements for notices of hearing before an Interim Orders Panel have been amended, so that the GMC is no longer required to particularise the allegation and the facts upon which it is based. Under amended Rule 26 (2), the GMC is only required to inform the doctor of the allegation and the facts upon which it is based.
Under amended Rule 28, hearings can now be cancelled by a case examiner, removing the need for a member of the committee to make the decision.
Under new Rule 9 (5), panel members can be replaced in hearings that go part-heard. As a result, if hearings are adjourned and rescheduled to continue at a later date and difficulties arise in relation to the original panel sitting at the hearing, a case manager (who by virtue of the amended Constitution of Panels and Investigating Committee Rules can now be a Panellist who sits on Review Hearings, Interim Orders Panel hearings and Restoration hearings) now has broad discretion to make any necessary directions 'in the interests of justice'.
Under Rule 30 of the old rules, a panel was bound by a determination of a previous panel in relation to preliminary legal arguments unless it had been 'wrongly decided'. Under amended Rule 30, a panel is not bound by a previous panel's decision on a preliminary legal argument 'if there has been a material change in circumstances and that it is in the interests of justice to reconsider the matter' or 'it is otherwise in the public interest to do so'.
Rule 34 (2) has been amended so that a panel can now admit any evidence it considers fair and relevant to the case it is hearing, whether or not that evidence would be admissible in criminal proceedings.
Under Rules 34 (13) and (14) any party can make an application for a witness to give evidence by video link or telephone link but in making this decision, the panel must have regard to any representations or agreement by the parties or any direction by a case manager.
Amended Rule 37 gives responsibility for recording and publishing the panel's decision to the panel, instead of this being carried out by the secretary to the panel.
New powers for case managers
Under amending Rules 2 (5) (b) and 2 (11), which amend Rule 16 (6) (f) of the old rules, case managers will now have the power to direct that two or more allegations against one or more doctors should be listed for consideration together at the same hearing, and that any such direction will be taken into account by any panel considering the exercise of their power to join two or more allegations against one or more doctors together.
Case managers will now also have the power to postpone a fitness to practise panel hearing until a time and date that they see fit, either on the application of either of the parties or of their own accord under the amendments to Rule 29 of the old rules.
Under amending Rule 2 (5) (a), which amends Rule 16 of the old rules, case managers are now able to direct that a witness is to give evidence in chief by way of oral evidence as the default position, in accordance with the new rules is that a witness statement will now be a witness' evidence in chief.
Constitution of Panels and Investigation Committee Rules
Under these new Rules, panellists are able to sit on review hearings or restoration hearings before a Panel, or to act both as a case manager and chair in a case, despite Rule 4 (3) of the Constitution of Panels and Investigation Committee Rules, which state that no panellist shall sit on a substantive hearing of a case in which the panellist has previously considered or adjudicated on in another capacity.
The quorum of a panel or the committee is now three, including the panel chair, one of whom must be a medical member, and one of whom must be a lay member.
The setting up of the new MPTS, along with the General Medical Council (Fitness to Practise and Constitution of Panels and Investigation Committee) Amendment Rules 2013 coming into force on 8 May 2013, constitute the first major overhaul of procedures at the GMC since 2004.
It remains to be seen how the new rules and amendments to the old rules will affect investigative procedures and Fitness to Practise Panel hearings, and whether or not the MPTS will be seen to be adjudicating independently of the GMC itself.
If you are a doctor facing an investigation into your fitness to practise by the GMC, please contact our regulatory team: please contact us on 03700 865722
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