Chair of the MPTS’ consultation on decision making and sanction banding: A sensible proposal

HHJ Deborah Taylor was a familiar face in the criminal courts where in recent years she has presided over some of the most complex frauds as Resident Judge at Southwark Crown Court and Recorder of Westminster. She also sat in the Court of Appeal (Criminal Division). Now in her capacity as the Chair of the MPTS she is bringing that expertise in the criminal justice system to bear on the way doctors are sanctioned.

Anyone who has practised in crime will get a strong feeling of familiarity from proposals in the new consultation document Methodology of MPTS Decisions and Sanctions Banding which HHJ Taylor has circulated to attendees at the recent ARDL Annual Conference. In style and structure it is closely modelled on the successful format of the Sentencing Council’s Sentencing Guidelines which now cover a wide range of criminal offences tried in the Magistrates’ Courts and the Crown Court. Comments are requested by the end of the year.

The proposals contain a number of tools to help with the sanction procedure:

1. A “Methodology Flowchart” which covers the entire process from the finding of facts onward.
2. A table to assist at the impairment stage by which the tribunal will be guided on factors that might indicate that the factual findings reveal a case of low, medium or high seriousness.
3. An “Assessment Matrix” in which level of seriousness (low, medium, high) is plotted against insight and remediation (no insight, some, full) which when applied leads the tribunal to a box that determines level of risk to the public (e.g. medium seriousness + no insight = high risk).
4. A table setting out indicative sanctions for a range of cases (sexual misconduct, dishonesty, clinical etc) based on the decision the tribunal will already have made about the level of seriousness of the case
5. A general banding table is provided where specific types of misconduct (sexual, dishonesty, clinical etc) are put in bands with a suggested range of sanction depending on the level of risk identified on the basis of the result of the Assessment Matrix. So a medium risk dishonesty case has a sanction band of 3-9 months suspension).
6. More detailed guidelines for the types of misconduct on the general banding table.

The procedure that seems to be envisaged is this: Step 1 is for the tribunal to make its findings of fact. Step 2 is for it to consider “if there is any current and ongoing risk to public protection”. This consists of three sequential steps:

Step 2a is to consider the seriousness of the allegations, the extent of the departure from professional standards or the impact of a health condition. This appears to be the point at which the “Seriousness” table is applied (see para 3(b) above) and will generate of finding of low, medium or high. It should be said that “medium” is defined as “Cases which are categorised as neither low or high seriousness and which have characteristics of both”. While this might seem a bit unhelpful, it is a feature of a number of the criminal guidelines and generally provides sufficient flexibility to deal with cases that do not fit comfortably into one category or the other. A table of factors suggesting increasing seriousness and risk is also provided for this stage.

Step 2b is to then take account of “contextual factors” which include systems issues, interpersonal issues, health issues, role/level of experience, and personal factors which might have led to poor performance. The tribunal must decide the relevance of these to increase or decrease the level of risk. The tribunal will need to make a finding of high, medium or low risk at this point because that will then have to be factored into the “Assessment matrix” (see para 3(c) above).

Step 2c is to consider insight and remediation. This then also has to be factored back into the assessment of risk (but not the assessment of seriousness which is based on the nature of the proved allegations).

Step 3 is to make a decision on impairment: “Consider if there is a current and ongoing [“risk” I assume although the word is missing] to one or more parts of public protection to decide if the medical doctor is impaired”.

Pausing at this stage, it is noticeable that the word “misconduct” has not appeared (misconduct is not mentioned anywhere in this consultation or on any of the tables). Further, the single phrase “public protection” is used, and “public interest”, “confidence” or “declare and uphold standards” have yet to come into play. The flavour is very much risk to the public, although not necessarily on a strictly clinical basis. However it does not seem to leave much room for a public interest impairment.

The case law is clear that misconduct is an entirely separate stage which is not currently reflected in the flowchart at all. The lack of attention to misconduct raises other potential problems. Under this scheme the tribunal is not reminded of the need to consider the factual findings individually for misconduct – see the dicta in Schodlok v GMC [2015] EWCA Civ 769, considered again in Ahmedsowida v GMC [2021] EWHC 3466 (Admin).

Once the tribunal has completed steps 2a-c, Step 3 is the impairment decision. Before taking the decision the tribunal should review all the previous steps which is a helpful reminder not to follow the process too mechanically and to step-back and view the case as a whole.    

Step 4 is then to review the impairment decision, consider the findings in 2a-c and “any additional evidence relevant to current risk”. Step 4a is to take into account any further evidence relevant to what action to take, including impact (presumably that means on the doctor), consider references and testimonials and then decide if it is appropriate to take the additional evidence into account.

Finally Step 5 is the sanction decision itself where the tribunal should stand back and consider the level of risk identified, refer to the general and specific sanctions banding (if available for the specific findings) and then decide.

One very welcome aspect of the banding tables is the explicit acknowledgement that all types of misconduct come in all levels of seriousness. For example the pieties of “dishonesty is hard to remediate” with the implication that it is always serious are to some extent displaced so that a low-risk dishonesty has a band of up to three months suspension, medium risk is 3-9 months and high risk is nine months to erasure.

Once again, though, the use of the terminology of risk and “public protection” downplays the extent to which, especially with dishonesty, the issue is often risk to the reputation of the profession, rather than any direct risk of harm. Even in the detailed tables, public confidence gets something of a walk-on role. The following is typical:

“Dishonest behaviour may result in physical or emotional harm to a patient or member of the public. Harm can be long lasting and may impact on a how a patient accesses health services in the future. It can also impact on colleagues, collaborative working, others in the profession and the confidence of the public.”

It may be that this is deliberate, reflecting a downgrading of the reputational damage done by dishonesty in doctors, but that seems unlikely. More likely it has got lost in the focus on direct risk.

The consultation is at an early stage. Although practitioners have only until the end of the year to respond, it is anticipated that the new scheme will not apply to cases before summer 2025. While the multiple stages, tables and bandings seem overcomplicated, there is much to welcome in these proposals and most practitioners will support any system that makes sanction decisions more consistent and comprehensible.

Ben Rich