The MPTS’s new all-encompassing hearings guidance is out and in force – Chris Gillespie and Ben Rich look at how it might work.

About a year ago, Chris Gillespie [CG] and me, Ben Rich [BR], wrote a pair of articles for the 2 Hare Court Newsletter, based on draft proposals from the MPTS for revised sanctions guidance. The consultation is now over and the new guidance has been published. It has been in force for around a month now, too early for any of us to get a real feel as to how it is going. So we thought we would examine it and make some predictions. Rather than separate articles, this time we revisit together some of the aspects of the Guidance we wrote about back then (and some new ones), and assess what we think about the final document.

BR: Chris, my article last year was headed “A Sensible Proposal” and yours “A Methodology Ill-suited to Healthcare Regulation” so it was clear we did not see eye to eye about the draft proposals. So first let’s do a crude assessment: taking the new guidance as a whole: is it a good thing, or a bad thing compared to what we have now?

CG: The first thing to acknowledge is the huge amount of work that has gone into the new guideline. There is a clear public interest in ensuring, so far as possible, that tribunal decisions are consistent, but the guidance makes clear that it is open to a tribunal to depart from the guidance as long as it explains carefully how the departure is justified with reference to the specific circumstances of the case and the parties’ submissions.

I also welcome the detailed focus on all stages of the hearing: fact-finding, misconduct and impairment, and sanction. In terms of decision making, it should ensure that the various determinations feed into each other in a logical and structured manner.

The new guidance attempts, successfully in my opinion, to integrate the various well-known authorities on stage 1 issues such as reliability and credibility, character and adverse inferences. Similarly, the guidance on impairment is extremely thorough. We can discuss later the effect this is likely to have on the length of hearings.

On balance, I think the guidance represents a real improvement on previous iterations.

BR: To some extent I think we may have swapped roles. Having gone through it all in detail, I am more sceptical than I was about how complicated it is. I can certainly join you in acknowledging the extent of the work that must have gone into it, and I do think it will improve consistency in sanctions decisions, but I have some concern about how complex it makes the whole process for Tribunals. To answer the crude question I posed, consistency and the rule of law have to trump practical complexities, so I am still going to come down on the side of thinking it is a good thing – just.

The bandings

BR: Last year we only had the sanctions section, and the new bandings for specific types of cases were definitely the most eye-catching part of that. So leaving aside any effects on how hearings are conducted, what about the substance of the bandings?

CG: I think the guidance bands are well-crafted and sensible. As I said, tribunals are entitled to depart from the guidance but will have to justify any decision to do so.

BR: I agree with that. They seem to set out sensible ranges for specific types of wrongdoing, for example dishonesty and sexual misconduct. In addition to that, they will provide an unavoidable reminder for tribunals (and advocates) that all types of misconduct come in all levels of seriousness. That should mean more nuanced decision-making about where on the spectrum of seriousness conduct lies. Taking dishonesty as an example: if the tribunal puts it in the ‘lower level’ of risk, the band suggests suspension of up to three months. I hope that phrase “up to” will enable tribunals to see that, in a regime where there is no reprimand or warning after impairment, and conditions may not be relevant, a short, sharp (say 1-month) suspension might be enough.

Guidance on the facts stage

BR: Chris, in your first comment above you welcomed the inclusion in the guidance of the fact-finding stage – the first time tribunals have had written guidance on this. You mentioned the attempt to integrate case law principles into the text, and I have some concerns about this (at all stages). I think that the relevant case should always be footnoted so that we can decide for ourselves whether it has been correctly characterised. I know it might seem overly messy, but I want to know where they got the principle from. For example, I have two issues with the few lines on offer about misconduct. First, it says “This includes single clinical acts or omissions which are serious …”. This looks like a reference to Calhaem, which uses the phrase “particularly grave” rather than “serious”. You might say that’s ridiculous pedantry, but if they are referring to Calhaem, why not use the phrase it uses?  Much more serious (or grave?) the second half of that sentence reads “… or a limited number of clinical acts or omissions that taken together are serious”. That’s not far off a direct contradiction of Schodlock and Ahmedsowida, which set out that tribunals cannot “aggregate” like that, except in very limited circumstances. There are other areas where the guidance sets down definitive principles, where I think it should say “mostly”, or even “in almost all cases”.

CG: I am not too concerned about the lack of footnotes, particularly for stage 1. The authorities are all well-known and I cannot remember the last time I was surprised or ambushed by a case. The specific examples you have given are relevant to stage 2. I am not sure there is a difference between “serious” or “grave”, or even “particularly grave”, because I do not understand what the word “particularly” adds in any event. Although there is always a spectrum of gravity or seriousness, if something can be properly described as serious or grave, then by definition the starting point is high. However, I take your point on Schodlock and Ahmedsowida, which is more nuanced than the guidance allows.

Will the new guidance lengthen hearings?

BR: Now your big concern last time was the added time to stages 2 and 3 of hearings – now you’ve seen the actual guidance, are you still worried? Will it lengthen stage 1 as well?

CG: I do not think stage 1 will be lengthened, because the guidance should obviate the need for extensive discussion as to what the law is on these important topics, and there should be no need for extensive submissions in the majority of cases. I think it is inevitable that stages 2 and 3 will be longer, both because counsel will have more material on which to make submissions as to where in the spectrum of seriousness a case fits and, in a case where the bands apply, which is the appropriate sanction band. Tribunal determinations are also likely to be longer because they will have “to show their workings”. So, perhaps the answer to the question is “Yes and no.” I think hearings will be extended, but that may not be a bad thing if the decision and the process by which it is reached is clearer than before.

Will it lead to more appeals?

CG: As the guidance beds in, I think we can expect an increase in appeals, whether by registrants, the GMC or the PSA, on the ground that the tribunal failed to follow the guidance sufficiently or accurately, or failed to recognise the features that it will be said to have taken the case outside the bands. The Court of Appeal Criminal Division often deals with appeals against sentence on the ground that the sentencing judge misapplied the relevant guideline by saying words to the effect that, standing back, can it be said that the sentence of x years for this offence or offences was wrong, and then answering their question with a resounding no. It will be interesting to see what approach the Admin Court takes.

BR: I agree – I suspect we will see more cases in the High Court, certainly at first. At some point, though, a judge will comprehensively slap us all down, and say that departing from the guidelines is not, on its own, a ground of appeal, or use some phrase like “margin of judgment”, and we’ll all have to calm down. For better or worse, and in the end I think we agree it will be for better, the guidance is with us, and it will be for many years to come.