The General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015

(40A) (1) This section applies to any of the following decisions by a Medical Practitioners Tribunal— (a) a decision under section 35D giving— (i) a direction for suspension, including a direction extending a period of suspension; (ii) a direction for conditional registration, including a direction extending a period of conditional registration; (iii) a direction varying any of the conditions imposed by a direction for conditional registration; (b) a decision under paragraph 5A(3D) or 5C(4) of Schedule 4 giving— (i) a direction for suspension; (ii) a direction for conditional registration; (c) a decision under section 35D— (i) giving a direction that a suspension be terminated; (ii) revoking a direction for conditional registration or a condition imposed by such a direction; (d) a decision not to give a direction under section 35D; (e) a decision under section 41 giving a direction that a person’s name be restored to the register; (f) a decision not to give a direction under paragraph 5A(3D) or 5C(4) of Schedule 4. (2) A decision to which this section applies is referred to below as a “relevant decision”. (3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public. (4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient— (a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the medical profession; and (c) to maintain proper professional standards and conduct for members of that profession. (5) The General Council may not bring an appeal under this section after the end of the period of 28 days beginning with the day on which notification of the relevant decision was served on the person to whom the decision relates. (6) On an appeal under this section, the court may— (a) dismiss the appeal; (b) allow the appeal and quash the relevant decision; (c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit. (7) In this section and section 40B, “relevant court” has the meaning given by section 40(5). (40B) (1) If the General Council bring an appeal under section 40A— (a) the Registrar must without delay give notice of the appeal to the Professional Standards Authority for Health and Social Care (“the Authority”); and (b) the Authority may not refer the case to which the appeal relates under section 29 of the National Health Service Reform and Health Care Professions Act 2002 (“the 2002 Act”). (2) The Authority may, in spite of subsection (1)(b), become a party to the appeal by giving notice to that effect to the relevant court, the General Council and the person to whom the relevant decision relates; and— (a) the Authority does not require the permission of the relevant court to become a party to the appeal; and (b) accordingly, any provision of rules of court requiring an application for such permission does not apply to the Authority. (3) Having become a party to an appeal under section 40A by virtue of subsection (2) of this section, the Authority may make representations or file evidence in the appeal at any time before the end of the hearing of the appeal; but where it does so at a time which would, but for this subsection, have been in breach of a time limit imposed by rules of court, the relevant court may impose such conditions as it thinks fit. (4) The matters which the Authority may raise on an appeal under section 40A include any matter which it could have raised on a reference of the case under section 29 of the 2002 Act. (5) Where the Authority raises matters on an appeal under section 40A, the General Council and the person to whom the relevant decision relates have the same opportunity to respond as they would have if the Authority had raised the matters on a reference of the case under section 29 of the 2002 Act (and the General Council and person concerned had accordingly been respondents by virtue of subsection (7) of that section). (6) If the General Council wish to withdraw an appeal under section 40A or, having agreed the terms of a settlement of the appeal with the person concerned, wish the appeal to be disposed of on those terms, they must give notice of their wish to the Authority (whether or not the Authority is a party to the appeal). (7) The Authority, having received a notice under subsection (6), must by notice inform the relevant court, the General Council and the person concerned whether it wishes the proceedings on the appeal to continue. (8) Where the Authority gives notice under subsection (7) that it wishes the proceedings to continue, they are to continue but are, from the time when the Authority gives its notice to the relevant court under subsection (7), to be treated as proceedings on a reference made by the Authority to the court under section 29 of the 2002 Act. (9) In a case within subsection (8), the Authority must give notice to the relevant court, the General Council and the person concerned specifying the grounds of its case; and the General Council and the person concerned (as respondents to the appeal by virtue of section 29(7) of the 2002 Act) have the opportunity to respond accordingly. (10) A requirement in this section to give a notice to a specified person is in addition to such requirements as are imposed by rules of court in relation to the persons to whom notice is to be given; and the giving of notice under this section is subject to such other requirements relating to the giving of notices as are imposed by rules of court.

• (2) In paragraph 11 of Schedule 4 to the Medical Act (timing of suspension or conditional registration), at the end insert—

(5) A reference in this paragraph to an appeal under this Act does not include a reference to an appeal under section 40A.

References to court by the Professional Standards Authority for Health and Social Care

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• (1) In section 29 of the National Health Service Reform and Health Care Professions Act 2002 (reference of disciplinary cases by the Professional Standards Authority for Health and Social Care to court)⁴², in subsection (1)(c), for “a Fitness to Practise Panel” substitute “a Medical Practitioners Tribunal”.

• (2) In subsection (1) of that section, after paragraph (c) insert—

(ca) a direction by a Medical Practitioners Tribunal of the General Medical Council under paragraph 5A(3D) or 5C(4) of Schedule 4 to the Medical Act 1983 for suspension of a person’s registration or for conditional registration,

• (3) For subsection (4) of that section substitute—

(4) Where a relevant decision is made, the Authority may refer the case to the relevant court if it considers that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public. (4A) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient— (a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the profession concerned; and (c) to maintain proper professional standards and conduct for members of that profession.

• (4) In subsection (6) of that section—

• (a) after “the end of the period of” insert—

— (a)

, and

• (b) at the end insert

, or (b) in the case of a relevant decision against which it is not possible for the practitioner concerned to appeal, 56 days beginning with the day on which notification of the decision was served on the person to whom the decision relates.

• (5) In subsection (7) of that section, in paragraph (b), after “the body which made the relevant decision” insert “(as well as the person to whom the decision relates)”.

• (6) After that subsection insert—

(7A) In a case where the relevant decision is taken by a committee, the reference in subsection (7)(b) to the body which made the decision is to be read as a reference to the body of which it is a committee.

• (7) In subsection (8) of that section, at the end of paragraph (d) insert “or, in the case of a relevant decision within subsection (1)(c) or (ca) or a relevant decision within subsection (2)(a) or (c) not to take a disciplinary measure under a provision referred to in subsection (1)(c) or (ca), remit the case to the Medical Practitioners Tribunal Service for them to arrange for a Medical Practitioners Tribunal so to dispose of the case.”

• (8) After that subsection insert—

(9) Where rules under paragraph 1 of Schedule 4 to the Medical Act 1983 provide, by virtue of paragraph 1(2E) of that Schedule, for the application of section 35D of that Act, the reference in subsection (1)(c) of this section to section 35D of that Act includes a reference to that section as so applied. (10) The reference in subsection (1)(ca) to paragraph 5A(3D) of the Medical Act 1983 includes a reference to that provision as applied by section 35A(6E) of that Act.

• (9) After that section insert—

(29A) (1) If the Authority makes a reference under section 29 of a case involving a relevant decision such as is mentioned in subsection (8)(d) of that section— (a) the Authority must without delay give the General Medical Council notice of the reference; and (b) the General Medical Council may not bring an appeal under section 40A of the Medical Act 1983 against the decision. (2) Where the General Medical Council is the respondent in the case of a reference under section 29, the matters which it may raise on the reference include any matter that it could have raised on an appeal against the relevant decision under section 40A of the Medical Act 1983. (3) If the General Medical Council is the respondent in the case of a reference under section 29, and the Authority either wishes to withdraw the reference or, having agreed the terms of a settlement of the case with the person to whom the relevant decision relates, wishes the case to be disposed of on those terms, the Authority must give notice of its wish to the Council. (4) The General Medical Council, having received a notice under subsection (3), must by notice inform the relevant court, the Authority and the person concerned whether it wishes the proceedings on the reference to continue. (5) Where the General Medical Council gives notice under subsection (4) that it wishes the proceedings to continue, they are to continue but, from the time when the Council gives its notice to the relevant court under subsection (4), are to be treated as proceedings on an appeal made by the Council under section 40A of the Medical Act 1983. (6) In a case within subsection (5), the General Medical Council must give notice to the relevant court, the Authority and the person concerned specifying the grounds of its case; and— (a) the person concerned has the opportunity to respond accordingly, and (b) the Authority has the opportunity to become a party to the appeal by virtue of section 40B(2) of the Medical Act 1983. (7) A requirement in this section to give a notice to a specified person is in addition to such requirements as are imposed by rules of court in relation to the persons to whom notice is to be given; and the giving of notice under this section is subject to such other requirements relating to the giving of notices as are imposed by rules of court. (8) In this section, “relevant court” and “relevant decision” each have the same meaning as in section 29.

Restoration of names to the register

19

• (1) In section 41 of the Medical Act (restoration of names to the register)⁴³, in subsections (1), (3), (6), (7), (9), (10) and (11), for “Fitness to Practise Panel” substitute “Medical Practitioners Tribunal”.

• (2) In subsection (2) of that section, omit “to a Fitness to Practise Panel”.

• (3) In subsection (3) of that section, after “refer the application to” insert “the MPTS for them to arrange for the application to be determined by”.

• (4) After that subsection insert—

(3A) Where an application is referred under subsection (3) to the MPTS, they must arrange for the application to be determined by a Medical Practitioners Tribunal.

• (5) After subsection (8) of that section insert—

(8A) Where a Medical Practitioners Tribunal give a direction under subsection (1), the MPTS must without delay serve on the Registrar and the Professional Standards Authority for Health and Social Care notification of the direction.

• (6) In subsection (10) of that section, for “the Registrar” substitute “the MPTS”.

• (7) In subsection (11) of that section, after “for that direction to be” insert “referred to the MPTS for them to arrange for the direction to be”.

Annual reports of the MPTS

20

After section 52A of the Medical Act insert—

(52B) (1) The MPTS must publish, by such date in each year as the Privy Council specifies— (a) a report on the nature and volume of cases referred to the MPTS; (b) a report on the exercise of the MPTS’s functions which includes a description of the arrangements that the MPTS have put in place to ensure that they adhere to good practice in relation to equality and diversity (and for these purposes “equality” and “diversity” each have the meaning given in section 8(2) of the Equality Act 2006); (c) a report on the points of learning which the MPTS have identified and their proposals for addressing each of those points. (2) The MPTS must submit copies of the reports published under subsection (1) to the Privy Council; and the Privy Council must lay copies of the reports before each House of Parliament.

PART 3 — The General Medical Council: over-arching objective

The over-arching objective

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• (1) In section 1 of the Medical Act (the GMC: constitution etc.), for subsection (1A)⁴⁴ substitute—

(1A) The over-arching objective of the General Council in exercising their functions is the protection of the public. (1B) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives— (a) to protect, promote and maintain the health, safety and well-being of the public, (b) to promote and maintain public confidence in the medical profession, and (c) to promote and maintain proper professional standards and conduct for members of that profession.

• (2) In section 34H(2) of that Act (objectives of GMC in establishing standards of postgraduate medical education and training)⁴⁵, for “that required by section 1(1A)” substitute “the over-arching objective”.

• (3) In section 35C of that Act (functions of the Investigation Committee)⁴⁶, after subsection (6) insert—

(6A) In deciding whether to give a warning under subsection (6), the Investigation Committee must have regard to the over-arching objective.

• (4) In section 35E of that Act (provisions supplementary to section 35D)⁴⁷, after subsection (3) insert—

(3A) In exercising a function under section 35D, a Medical Practitioners Tribunal must have regard to the over-arching objective.

• (5) In section 41 of that Act (restoration of names to the register)⁴⁸, after subsection (11) insert—

(12) In exercising a function under this section, a Medical Practitioners Tribunal must have regard to the over-arching objective.

• (6) In section 44 of that Act (effect of disqualification in another relevant European State on registration in UK)⁴⁹, after subsection (5) insert—

(5A) In deciding whether to give a direction under subsection (5)(a), a Medical Practitioners Tribunal must have regard to the over-arching objective.

• (7) In paragraph 23D of Schedule 1 to that Act (overriding objective of GMC in making rules about constitution of MPTS and Tribunals) (inserted by article 4(4)), at the end insert “; and where the General Council consider that there is a conflict between meeting the objective under this paragraph and the over-arching objective, they must give priority to meeting the objective under this paragraph.”

• (8) In paragraph 1 of Schedule 4 to that Act (fitness to practise proceedings: procedure, evidence etc.)⁵⁰, after sub-paragraph (1A) (inserted by article 7) insert—

(1B) Where the General Council consider that there is a conflict between meeting the objective under sub-paragraph (1A) and the over-arching objective, they must give priority to meeting the objective under sub-paragraph (1A).

• (9) In that paragraph, after sub-paragraph (2E) (inserted by article 9(1)) insert—

(2F) Where rules made under this paragraph include provision under sub-paragraph (2A)(a), the Investigation Committee or such person as is by virtue of sub-paragraph (2B) exercising the function conferred by the provision must, in exercising the function, have regard to the over-arching objective. (2G) Where rules made under this paragraph include provision under sub-paragraph (2C)(b), or provision under sub-paragraph (2C)(c) of the kind mentioned in sub-paragraph (2D), a Medical Practitioners Tribunal must, in exercising the function conferred by the provision, have regard to the over-arching objective.

• (10) In paragraph 5A of that Schedule (professional performance assessments and health assessments)⁵¹, after sub-paragraph (3G) (inserted by article 10(5)) insert—

(3H) In deciding whether to give a direction under sub-paragraph (3D), a Medical Practitioners Tribunal must have regard to the over-arching objective.

• (11) In paragraph 5C of that Schedule (knowledge of English assessments)⁵², after sub-paragraph (4) insert—

(4A) In deciding whether to give a direction under sub-paragraph (4), a Medical Practitioners Tribunal must have regard to the over-arching objective.

• (12) In section 55 of the Medical Act, after subsection (1) insert—

(1A) References in this Act to the over-arching objective are to the over-arching objective of the General Council under section 1(1A) (read with section 1(1B)).

PART 4 — Other matters relating to fitness to practise

Investigation Committee: vexatious allegations, facts more than 5 years old, reviews

22

• (1) In section 35CC of the Medical Act (provisions supplementary to section 35C)⁵³, after subsection (3) insert—

(4) Rules under paragraph 1 of Schedule 4 may make provision for section 35C(4) to (8) not to apply in relation to an allegation if the Investigation Committee consider the allegation to be vexatious. (5) Rules under paragraph 1 of Schedule 4 may make provision for section 35C(4) to (8) not to apply in relation to an allegation if— (a) at the time when the allegation is made, more than five years have elapsed since the most recent events giving rise to the allegation, and (b) the Investigation Committee consider that it would not be in the public interest to investigate the allegation. (6) Rules including provision by virtue of subsection (4) or (5) must provide that, where section 35C(4) to (8) does not apply in relation to an allegation, the Investigation Committee must serve notification of the decision on the person making the allegation (if any). (7) Rules under paragraph 1 of Schedule 4 may make provision as to circumstances in which the Investigation Committee may review a decision made by them of a description specified in the rules that relates to a person’s fitness to practise. (8) Where the rules include provision by virtue of any of subsections (4) to (7), the reference in subsection (1) to the functions of the Investigation Committee under section 35C is to be read as including a reference to the functions conferred by such provision.

• (2) In paragraph 8 of Schedule 4 to the Medical Act (service of notifications of decisions)⁵⁴, in sub-paragraph (1), at the end insert “or by virtue of section 35CC(6)”.

Registration Appeals Panels

23

• (1) In paragraph 4 of Schedule 3A to the Medical Act (registration and training: appeals from appealable registration decisions)⁵⁵, in sub-paragraph (7), for “a Fitness to Practise Panel” substitute “the Investigation Committee (where, in the case of paragraph 7, the Committee are considering giving a warning to a person)”.

• (2) In Schedule 3B to that Act (licence to practise and revalidation: appeals)⁵⁶, in paragraph 3(4), for “a Fitness to Practise Panel” substitute “the Investigation Committee (where, in the case of paragraph 7, the Committee are considering giving a warning to a person)”.

Service of notification of decisions by email

24

• (1) In paragraph 8 of Schedule 4 to the Medical Act (service of notifications of decisions), in sub-paragraph (2)—

• (a) omit the “or” preceding paragraph (d), and

• (b) after that paragraph insert

; or (e) by sending it to an email address which the person provides for the purpose of fitness to practise proceedings

• (2) At the end of that paragraph insert—

(6) For the purposes of this paragraph, service of a notice sent by email is effected only if there is an electronic receipt showing that the email has been opened (or if the recipient acknowledges receipt in some other way).

Appeal of review orders

25

In paragraph 11 of Schedule 4 to the Medical Act (proceedings before Investigation Committee etc: appeal of review orders)⁵⁷, in sub-paragraphs (1) and (3), for the words from “the direction takes effect” to the end substitute

— (a) the direction takes effect in accordance with paragraph 10, 10A or 10B above, (b) where on an appeal under this Act against the direction the MPTS arrange for the matter to be disposed of by a Medical Practitioners Tribunal, the Tribunal dispose of the matter and their decision on doing so takes effect, or (c) an appeal under this Act against the direction is determined (otherwise than by the dismissal of the appeal or by the disposal of the matter by a Medical Practitioners Tribunal).

Minor corrections etc.

26

• (1) In paragraph 3(3)(b) of Schedule 3B to the Medical Act (licence to practise and revalidation: appeals), omit “the Solicitor to”.

• (2) In paragraph 13 of Schedule 4 to that Act (proceedings before the Investigation Committee etc: meaning of “party”), omit “the Solicitor to”.

PART 5 — Supplementary

Orders by the Privy Council: procedure

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• (1) A power of the Privy Council to make an order under this Order is exercisable by statutory instrument.

• (2) The power may be exercised by two or more members of the Privy Council.

• (3) For the purposes of section 1 of the Statutory Instruments Act 1946⁵⁸, the power is to be taken to be conferred by Act of Parliament.

• (4) The making of an order under this Order is sufficiently signified by an instrument signed by the Clerk of the Privy Council.

• (5) An instrument containing an order under this Order purporting to be signed by the Clerk of the Privy Council is evidence (and, in Scotland, sufficient evidence) of the fact that the order was duly made and of its terms.

Signed

Richard Tilbrook — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order amends the Medical Act 1983 (“the Act”) to make provision as outlined below and consequential changes.

Articles 2 to 4 establish the Medical Practitioners Tribunal Service (“the MPTS”) as a statutory committee of the General Medical Council (“the GMC”) to strengthen the separation between the GMC’s investigation and adjudication arms, and place Medical Practitioners Tribunals and Interim Orders Tribunals (formerly fitness to practise and interim orders panels) under the administrative control of the MPTS. The overriding objective of the GMC when making rules relating to appointments to the MPTS and its tribunals is to secure that cases are dealt with fairly and justly.

Article 5 amends the review powers that are to be exercisable by Medical Practitioners Tribunals, including by introducing provision to ensure that reviews can be carried out before the expiry of tribunal directions and to enable reviews without a hearing where both parties are in agreement as to the outcome.

Article 6 includes provision enabling reviews of interim orders without a hearing where both parties are in agreement as to the outcome.

Article 7 makes provision for there to be an overriding objective for the making of certain procedural rules of securing that cases are dealt with fairly and justly.

Article 8 amends the Act to include specific rule-making powers for investigations to continue once MPTS proceedings have started and for cases referred to the MPTS to be withdrawn. Provision is also made for rules to include provision for preliminary hearings and in relation to the consequences of failure to comply with rules and directions (which may include refusal to admit evidence, the drawing of adverse inferences and the award of costs). Provision is made for rules to provide for costs to be awarded on account of unreasonable behaviour. Provision is also made for rules to require a legally qualified Tribunal chair to inform the parties of certain advice given by the chair to the Tribunal.

Article 9 amends the Act in relation to powers to provide in rules for undertakings to be agreed between the GMC and a practitioner and for the consequences of breaches, including specific provision for undertakings to be agreed during a fitness to practise hearing, after a finding of impairment has been made, and for a tribunal to take into account such undertakings.

Articles 10 to 12 make amendments to the Act in relation to professional performance assessments and include express provisions relating to health assessments, including provision for directions by Medical Practitioners Tribunals for non-compliance with such assessments to include up to 12 months’ suspension or up to three years’ conditional registration; and, where relevant, corresponding amendments are made for knowledge of English assessments.

Article 13 provides for the MPTS to appoint legal assessors in fitness to practise proceedings. The MPTS must appoint a legal assessor in the case of a Tribunal where the chair is not legally qualified and have discretion to do so in other cases.

Article 14 provides for the MPTS to appoint case managers in fitness to practise proceedings and for such case managers to have the power to give directions.

Article 15 confers power on the GMC to require practitioners to provide information or produce documents (subject to certain exceptions) for certain purposes and to refer the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to consider whether to impose a suspension or conditional registration in the event of non-compliance.

Article 16 makes consequential provisions relating to appeals by practitioners.

Articles 17 and 18 introduce a power for the GMC to bring appeals against fitness to practise decisions alongside the power of the Professional Standards Authority for Health and Social Care (“the PSA”) to refer such decisions to the higher courts under section 29 of the National Health Service Reform and Health Care Professions Act 2002. Provision is made to ensure that there can be only one such appeal or reference. The PSA’s grounds for reference are also amended, and the same grounds are applicable to the GMC’s power of appeal.

Article 19 makes consequential changes relating to applications for restoration to the register.

Article 20 provides for annual reports of the MPTS to be published by them and to be laid before Parliament by the Privy Council.

Article 21 provides for a new over-arching objective for the GMC in place of their main objective and for regard to be had to it by the Investigation Committee, when considering whether to give a warning or agree undertakings, and by Medical Practitioners Tribunals.

Article 22 amends the Act to include specific rule-making powers for the rejection of vexatious allegations and for allegations concerning facts that are more than five years old not to be investigated, except where investigation would be in the public interest, and for the review of investigation decisions.

Article 23 makes consequential provision in relation to Registration Appeals Panels.

Article 24 makes provision to enable service of statutory notices relating to fitness to practise by electronic mail.

Article 25 makes provision to ensure a direction for suspension or conditional registration will continue in effect during an appeal against a review decision until the final outcome of that appeal takes effect.

Article 26 makes minor corrections.

A full impact assessment has not been produced for this instrument as no or no significant impact on the private sector or civil society organisations is foreseen. A report on the Consultation in relation to the Secretary of State’s proposals to make this Order is available at https://www.gov.uk/government/consultations/changing-how-the-gmc-decides-on-doctors-fitness-to-practise.

Footnotes

Editorial notes