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Secret guidance for fitness to practise panels is withdrawn

BMJ 2014; 348 doi: https://doi.org/10.1136/bmj.g4163 (Published 20 June 2014) Cite this as: BMJ 2014;348:g4163
  1. Clare Dyer
  1. 1London
  1. claredyer4{at}gmail.com

Secret guidance issued to interim fitness to practise panels has been withdrawn after permission was granted to challenge it in court.

A doctors’ defence organisation argued that adverse decisions may have been reached on the basis of erroneous instructions in the guidance. It added that doctors’ defence teams would not have been able to correct these instructions because the guidance was kept secret from them.

The Medical Practitioners Tribunal Service, which hears fitness to practise cases brought by the General Medical Council, withdrew the guidance after the Medical Protection Society won permission for an urgent High Court hearing to challenge it.

The guidance was included in a document distributed by the tribunal service titled “Circular 34/13.” The circular was issued on 17 December 2013, but doctors and their defence bodies became aware of it only when it was discovered accidentally in January 2014. The document was found by a solicitor who had been instructed by the Medical Protection Society to defend a doctor facing a General Medical Council investigation.

The guidance came from the Medical Practitioners Tribunal Service’s quality assurance group and is directed at interim orders panels. These panels have the power to suspend doctors or restrict their practice pending a full investigation. The circular was signed by David Pearl, a former judge who chairs the tribunal service.

The circular noted that interim orders panels have sometimes decided not to make an order restricting a doctor’s practice if the doctor has started or completed a process of remediation. It recommended that, in the future, “panels give consideration to imposing an order where the doctor [him or herself] has recognised that there is a fitness to practise issue which requires remediation.”

Doctors appearing before the panels often produce testimonials that are obtained by their defence organisations. These testimonials aim to show that the doctors appearing before the panels are not a risk to patients and need not be suspended before the full facts are established at a fitness to practise hearing. But the circular told panellists that testimonials were “of limited value at the investigation stage” and “should not be taken into account in determining whether an order should be imposed.”

In papers filed with the High Court Philip Havers QC, Medical Protection Society counsel, said that the circular “misstates the law” and sought a court declaration that the guidance was unlawful. He added that the instruction to disregard testimonials was also “plainly irrational” and that it unlawfully sought to hamper the discretion of panels to decide whether to make an order.

The papers filed with the court said that the number of the circular, 34/13, suggested that it was the 34th to have been issued in 2013, but none had been supplied to defence organisations or published. Havers argued that adverse decisions for doctors might have been reached on the basis of erroneous instructions that their defence teams were unable to correct because they were unaware of them. He asked the court to order the GMC and the tribunal service to disclose to panels all circulars before and since number 34/13, as well as all future circulars or guidance.

The tribunal service agreed to publish all circulars to panels on its website and, to settle the High Court case, it made amendments—agreed with the Medical Protection Society—to the wording of 34/13. The revised circular, published in May, said that panels may take into account a doctor’s recognition that there is or may have been an issue about fitness to practise, and about any remediation undertaken, in deciding whether to impose an order.

On testimonials, it said that those attesting to a doctor’s general competence may be of limited value but that panellists should consider the relevance of testimonials to the issues they had to decide, such as whether the doctor would abide by conditions.

“The [Medical Practitioners Tribunal Service] now publishes on its website all learning points issued to panellists by the quality assurance group,” said Pearl. “It was brought to our attention that these documents were not being shared with those who regularly represent doctors at our hearings. We agreed that was unhelpful and are now publishing all learning points on our website.”

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