Chair of the MPTS’ consultation on decision making and sanction banding: A methodology ill-suited to healthcare regulation

There is much to be commended in the thinking behind the draft guidelines, in particular the recognition that not all dishonesty is so serious that it must sit on the cusp of a lengthy period of suspension or erasure. Ben Rich has already highlighted the absence of any reference to misconduct and the focus on risk to the public rather than the impact on the reputation of the profession. These are matters that are capable of rectification in any future draft. However, there is an argument that the guidelines are ill-suited to the regulatory process and overly complex. They will lead to increased hearing lengths at both stages 2 and 3 and will almost certainly lead to an increase in appeals by registrants, the GMC and PSA on the basis that either the guidelines have not been followed or have been followed too rigidly. There is nothing in the principles underlying the draft guidelines that could not be achieved by revision of the current Sanctions Guidance.

Those who practise or have practised in the criminal courts are very familiar with sentencing guidelines. Depending on the offence, the judge must evaluate, inter alia, the seriousness of the offence compared to other offences of the same type, the role of the offender in the offence, any loss sustained and the level of harm or the risk of harm. The purposes of criminal sentencing and regulatory sanction are completely different. Remediation plays no part in the sentencing process for obvious reasons: it is difficult to see how a drug dealer could remediate his criminal conduct. On the other hand, remediation plays a central part in healthcare regulation to the extent that on occasions even serious misconduct can be remediated fully in relation to all aspects of the public interest. Whether a registrant has or has not remediated and, if so, to what extent and how a registrant’s remediation should be weighed against the seriousness of the misconduct and the wider public interest are complex, nuanced issues that do not naturally fit within a schematic approach even where there are opportunities in the process to “stand back”.

Should the guidelines come into force, the biggest impact will undoubtedly be on the length of hearings, particularly at stages 2 and 3. Although all guidelines come with a warning that they are not statutes and should not be construed as such (“guidelines not tramlines”), the fact remains that once issues are reduced to a tabular form, both advocates and the MPT are effectively encouraged to fit a particular case into a particular box. It is increasingly common, and for good reason, for MPTs to request written submissions at each stage of the process. The drafting, arguing, consideration and adjudication of submissions together with the time needed to write the determinations is going to take significantly longer than at present.

The rationale behind the guidelines is laudable, namely to provide consistency and transparency. However, it is not clear that currently there is a problem with either. Certainly, very few appeals appear to succeed on the basis that an MPT has got its sanction wrong or because the reasoning of the MPT is unclear.

It is worth recording that MPTs now have a legally qualified chair who, having heard the advocates recite all the well-known authorities, directs the MPT on issues such as misconduct, dishonesty, sexual motivation and impairment in a manner that should not now ever form the basis of an appeal. An MPT will also contain at least one medical member who will be able to give the perspective of a member of the profession to the other members.

There is an important difference between criminal sentencing and the type of regime envisaged here. The rejoinder of the Court of Appeal Criminal Division to appeals based on the alleged misapplication of a guideline is often that even if it is conceded the process was not followed correctly in all respects, the sentence cannot be said to be manifestly excessive. In many cases this is due to the wide range of custodial sentence contained within the relevant sentencing band. This approach is unlikely to be followed by the High Court. The test is very different: was the decision wrong or unjust because of a serious procedural or other irregularity. If a registrant’s case has been put into the “wrong” box in relation, for example, to the degree of impairment or risk to the public, it is less likely that any sanction that flows from that decision can be said to have been one reasonably available to the MPT. The scope for appealing by registrants, the GMC and the PSA is thereby increased.

There is nothing objectionable to the Sanctions Guidance being revised to include, for example, a more exhaustive list of factors that should be taken into account by an MPT when it considers misconduct and impairment, a more nuanced discussion in relation to dishonesty and a reminder of the need to give clear reasons for any decision, so that the final determination reads logically and sensibly. The danger posed by the draft guidelines is that they, rather than the registrant’s misconduct, will become the main focus of the hearing and any appeal.

Christopher Gillespie