The High Court recently provided useful guidance in circumstances where doctors wholly admit allegations and what bearing this has during the sanctions stage.
PSA v GMC & Anor  EWHC 967
In this case, the Professional Standards Authority (PSA) challenged the imposition of a sanction imposed by a MPTS panel in 2022. The MPTS sanction followed a finding of misconduct against the doctor which resulted in the panel imposing a conditions of practice order for a period of 24 months with a review before the expiry of that period.
The conditions of practice order was imposed in respect of inappropriate prescribing practice by transcribing, signing and issuing almost 300 private prescriptions, purportedly for use outside the UK where insufficient or no relevant information was before the doctor. Evidence that was available to investigators later showed prescriptions were written for patients who did not exist.
It is important to none that none of the allegations, including as to misconduct and impairment, was contested by the doctor. The GMC adopted a neutral stance.
An aspect of the PSA’s grounds of appeal included the fact that the panel “failed to grapple with the seriousness of” the doctor’s misconduct when making its decision as to sanction, in particular failing adequately to address the significance of the maintenance of standards and of upholding public confidence in the profession.
Mrs Justice Foster ruled that, amongst other things, the panel made “a serious procedural error in the form of inadequate and unclear reasoning as to sanction”.
Central to the issue was the fact that the doctor wholly accepted the allegations and therefore none of the evidence and information were contested, examined and/or fully scrutinised by the panel. As a consequence, Foster J commented:
“The reasoning process is inadequate for the Court to determine whether or not certain important issues were appreciated, and if so, how they were reasoned through. It is therefore not possible to determine whether the sanction imposed was “wrong” in the statutory sense. There has been a serious procedural error engaging the Court’s appellate jurisdiction.”
Cogent analysis at sanction stage
Foster J went on to provide guidance for panel’s in circumstances where allegations are wholly admitted. Foster J said:
“Panels are required to make sanction decisions in various situations” but this “…is the more onerous because there has been no contest on the facts, nor upon impairment.” This, Foster J said, means the panel did not have “days of evidence including cross-examination in which to acquaint themselves fully with the nuance of the behaviour which is under examination. It is more difficult where a comprehensive plea is entered for a Panel to make the judgements as to context, character and seriousness that they are obliged to make.”
Under these circumstances, Foster J explained that “it is incumbent on the [GMC] presenting officer to prepare the facts fully” and that “Any unclearness or lack of clarity should, where central to the task at hand, be resolved by the panel where possible.”
Foster J stressed that a panel “should feel bold” to resolve any material issues they have by questioning as far as they need to do so, to clarify the central issues arising. Drawing on the example of criminal proceedings, Foster J said:
“In the criminal jurisdiction (far different from this), the ‘Newton hearing’ [R v Newton (1982) 77 Cr App R 13] has evolved to resolve issues as to the factual basis for a sentence. A decision is necessary because the Court must sentence on a true and proper basis. In the present case, of course, the facts led were all accepted by Professor Lingam. However it underscores the context of establishing carefully the factual basis, context and seriousness of any behaviour which falls to be sanctioned.”
Concluding her remarks on the issue, Foster J said:
“…the giving of cogent and informative reasons … is rendered much easier when central questions or uncertainties have been resolved. Cogent analysis at sanction stage is easier where the context and the significance of the evidence has been explored. As stated, this exploration may, in a case where the facts are admitted wholesale, and no, or only a short, hearing takes place, need to be accomplished by the Panel itself. They must then, in the reasoning they set out, expose the relevant analysis so the reader understands what the principal issues were, and what the Panel made of them. This is part and parcel of their function in protecting the public interest.”
MPTS Sanctions Stage
Before discussion the implications for doctors with reference to Foster J’s comments, it might be helpful to briefly look at the MPTS sanctions stage for context.
During a MPTS fitness to practise hearing, there are three stages:
- Stage one: finding of facts
- Stage two: impairment
- Stage three: sanction
During the sanctions stage, the panel must decide what sanction, if any, following a finding of impaired fitness to practise. The doctor’s representative can make representation to the panel as to the appropriate sanction, if any, and submit evidence about the doctor’s character, insight, remediation and other relevant evidence.
The panel will decide what action is necessary to protect the public. It can:
- end the case with no further action
- if appropriate, accept voluntary undertakings offered by the doctor
- place conditions on the doctor’s registration for up to three years
- suspend the doctor’s registration for up to one year
- erase the doctor’s name from the medical register (except in cases that only relate to a doctor’s health or language capabilities).
PSA v GMC – Implications for Doctors
The first thing to say is that doctors must seek legal advice. Very careful consideration must be given to admitting allegations. This will, in most cases, not be in the interest of the doctor and will certainly disadvantage the doctor.
There are however cases where admitting allegations would be appropriate and be in the doctor’s best interest. As this case demonstrated, where a doctor does admit the charges against them, they should expect the panel to probe, question and examine the evidence at their discretion even where the GMC have themselves not sought to do so during the hearing.
Doctors have a right of reply and can make representation regarding the sanction, if any, that the panel may impose. Key to this is evidence of insight and remediation. The MPTS’ sanction guidance states, in relation to examples of mitigating factors:
“Evidence that the doctor understands the problem and has insight, and of their attempts to address or remediate it. This could include the doctor admitting facts relating to the case, apologising to the patient, making efforts to prevent behaviour recurring…”
Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.
Kings View Chambers
With over 30 years combined experience, Kings View Chambers have established itself as one of the best when it comes to fitness to practise defence. We fully understand that fitness to practise defence is not merely about processes and procedures. We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.
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Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.