Arms-length adjudication

His Honour David Pearl talks to Summons about the challenges in his new role as chair of the Medical Practitioners Tribunal Service.

THE Medical Practitioners Tribunal Service or MPTS was set up in 2011 as the new adjudication service for UK doctors. It provides a hearings service that is intended to be fully independent in its decision-making and separate from the investigatory role of the GMC.

His Honour David Pearl was appointed chair of the MPTS in June 2012 to steer the organisation in its crucial development stage. As an academic, he has been a lecturer in Law at the University of Cambridge and Professor and Dean of the School of Law at the University of East Anglia. He has also acted as a circuit judge, president of the Immigration Appeal Tribunal and president of the Care Standards Tribunal.

What attracted you to the post of MPTS chair and what relevant experience do you bring to the role?

I felt I had experience I could bring to this role, having helped set up the Care Standards Tribunal and sat as its president for six years. It is an exciting challenge, as I believe there is a lot of opportunity to make hearings run more efficiently and improve the consistency of our decision-making. I am enjoying it and have an excellent team around me to deliver our reforms of the MPTS.

What was wrong with the way the GMC operated before the MPTS?

There was nothing wrong with the way it operated, but the introduction of the MPTS brings further separation between adjudication and the GMC’s investigation function. That was a key recommendation from Dame Janet Smith in 2004, a Government White Paper in 2007 and a further Government consultation in 2010. The Health Select Committee welcomed the establishment of the MPTS, saying they believe it will “provide greater assurance to the public about the quality of decisions” made about doctors’ fitness to practise.

I hope it gives doctors additional confidence in the independence of our decision-making: that we are protecting patients and ensuring doctors receive a fair hearing.

Is the common perception of “doctors protecting their own” at the GMC a real problem or more one of public perception?

I do not believe people have that perception - but the clearer separation we have created between the GMC and the MPTS is important. MPTS panels listen to evidence presented by both the GMC and the doctor and reach independent decisions. Our panels are made up of lay and medical members. Our hearings are in public (unless a doctor’s health is under discussion) and are fully transparent, with decisions published online.

What happened to plans in 2010 to establish the Office of the Health Professions Adjudicator (OHPA)?

The current government decided not to continue with the establishment of OHPA and the GMC took forward plans to develop a clearer separation of investigation and adjudication. The result was the formation of the MPTS as an operationally separate body.

It means that MPTS panellists who make decisions on doctors’ fitness to practise are recruited and trained separately from GMC investigators.

Quality assurance of decisions and appraisal of panellists all takes place within the MPTS. I hope that this separation will ensure the confidence of the medical profession, as well as patients and public.

How separate can the MPTS really be when its funding comes from the GMC?

The MPTS is operationally separate from the GMC and we have established an effective working relationship. The MPTS/ GMC Liaison Group meets regularly, where I and senior MPTS staff discuss matters with the GMC chair and chief executive.

Doctors’ fees pay for all GMC activity, including the MPTS. This means we are independent of government. It is important for the integrity of the medical profession and for public confidence that fitness to practise concerns are dealt with efficiently and fairly.

What are you doing to improve the efficiency of case management at the GMC to ensure no doctors are left in a “procedural limbo”?

I believe hearings often take too long. There are too many delays, many of which we can prevent. We are currently awaiting government approval for some changes to our rules, which we consulted on last year. These changes will improve the way our hearings are run, for instance by allowing witness statements to stand as evidence-inchief, rather than insisting they are read in to the record. This is standard practice in other jurisdictions.

The changes will also allow for better case management – which is key to ensuring hearings are run more efficiently. Case managers will make binding decisions on what evidence can be presented, cutting out lengthy legal argument.

Are you planning any other changes?

There are a number of changes we are working on that will require further consultation and legislation. These include giving the GMC a right of appeal against MPTS panel decisions, allowing us to appoint legally-qualified chairs for some cases, and giving the MPTS a formal role in statute.

I think there is also an argument for allowing the MPTS to impose cost sanctions on both the GMC and defence if there are unnecessary delays. This is common in other tribunals and works effectively. Again, this would be subject to consultation with bodies like the MDDUS.

One reform you support is providing the GMC the right to appeal a decision by your own panels. Why do you think this is necessary?

At present, if a doctor disagrees with a MPTS panel decision, he or she can challenge it in the High Court in England and Wales, the Court of Session in Scotland or the High Court of Justice in Northern Ireland. The GMC has no such right. As the MPTS is now operationally separate, it would be appropriate for the GMC to be able to appeal. It will enhance our operational separation and is the logical expression of that separation.

I am pleased that the Health Select Committee and the Professional Standards Authority (the former CHRE) have all expressed their support for this. The government has expressed its intention to bring forward the necessary legislation by 2015. We are working with officials to expedite this, and hope to have the changes in place by mid-2014.

Did you have any special interest in medicine before you took on the job at MPTS?

My background is in academia, and I taught medical law at Cambridge and UEA. I also co-wrote a book on blood tests and HIV back in 1990, so I have had an interest in this area for some time. I was a circuit judge from 1994 to 2012 and for six years was president of the Care Standards Tribunal, hearing appeals from decisions taken by regulators, including medical regulators like the Care Quality Commission. Aside from my MPTS role, I still sit as a judge for the Mental Health Review Tribunal, with a panel comprising of a psychologist and a lay member.

Do you think the MPTS has brought a culture change to the GMC?

We are trying to change the culture of hearings, for instance moving away from criminal rules of evidence and using civil rules. It is not acceptable that so much time is lost to panels having to adjourn to read documents for the first time during a hearing. Documents need to be ready on time and panels should have the opportunity to read them beforehand.

The rule changes that will come into effect this year will end the need to read out allegations and witness statements – everybody in the room has read them, they can just be agreed.

Outside of hearings, the Quality Assurance Group is reviewing decisions and providing panellists with learning and best practice. Ultimately this will improve the quality and consistency of our decision-making.

Interview by Jim Killgore, editor of Summons