Doctors aren’t entitled to have disciplinary cases heard by independent panels, court rulesBMJ 2011; 342 doi: https://doi.org/10.1136/bmj.d2751 (Published 28 April 2011) Cite this as: BMJ 2011;342:d2751
All rapid responses
Where people's livelihoods, reputations and wellbeing are put at risk
there is no justification for not changing a system with such obvious
loopholes potentially weighted against them. Why should there be any
resistance to ensuring that, as in any democratic legal system, the 'jury'
is seen by the defendant, to be capable of making a trustworthy decision.
To do this there must be the capability of appealing against the
composition of the 'jury', not just their judgement. Certainly if any
of the Panel are thought to have self interests or prior knowledge which
may predjudice the process, overtly or not, it would not be acceptable in
law to be forced to accept such a composition on the 'Panel'. Medical
processes need to be seen by the public and the profession as acting not
foremost to protect their self interests and reputations by making it easy
to dismiss individuals but to be willing to open up the process so that
'Panels' are constituted of a majority of 'panelists' who can can act
without anxiety about the consequences to their own position(s). It surely
cannot be acceptable for instance that doctors who are obliged to undergo
retraining or supervision have no choice at all about who supervises
them, especially when this is carried out in some instances by other
medics operating private companies.
Competing interests: interest in ethics of complaints systems
Given the MHPS procedures were put in place with BMA's agreement ,the court said at para.53(7),"it can be inferred that the system which has been put in place has been carefully balanced so as to give proper protection to doctors" and the "court should be slow to hold that a system of this kind fails to comply with Article 6".
However,the facts of this case  raise serious concerns whether the composition of first instance and appeal panels per BMA-agreed MHPS procedures could provide the promised 'impartiality & fairness' to doctors. If the dictum--justice must not only be done but must be seen to be done--is to be vaguely honoured,then surely, at least the majority of any panel should be from a different NHS Trust/organisation;otherwise,the presumed 'independence' of disciplinary panels will continue to be a major concern and more cases would reach the courts. So is it not time for the BMA to reconsider this issue formally? Perhaps,in cases of such fundamental importance, the BMA should join proceedings as an 'interested party' to secure the full Article 6 rights of doctors;among other things, that would improve its standing as a proper representative of all doctors.
Competing interests: No competing interests