Appeals from regulatory bodies

From its earliest days, the Clinical Disputes Forum has included members drawn from two of the statutory regulatory bodies governing the health professions - the General Medical Council (GMC) and the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC).

Many clinical disputes lead to action against health professionals under the regulators' disciplinary processes, and some of these end up in the courts, notably through a complex variety of appeals arrangements which have grown up incrementally. Although this area of activity was not at the historical core of the CDF's interests, in September 2000 the Forum agreed to establish a sub-group to consider one aspect of it: the mechanisms for appeals by health professionals against decisions by regulatory bodies limiting their right to practise.

This exercise was unusual for the CDF, not only in its subject-matter, but also in its timing. When the sub-group was established, the Government was consulting on proposals to establish separate Independent Appeals Tribunals - below the level of the Courts - for the proposed new regulatory bodies for nurses, midwives and health visitors (the Nursing and Midwifery Council) and the professions supplementary to medicine (the Health Professions Council), and it seemed likely that this would be used as a model for other professions. Also, the Lord Chancellor had called into question the continuation of the role of the Judicial Committee of the Privy Council to hear appeals against the GMC, the General Dental Council and the General Osteopathic Council by stating in a written Lords Answer that "there [were] strong arguments for dealing with [those] appeals at a lower judicial level". Government decisions on those matters had not yet been made, and there was an opportunity for the Forum to bring together all the interested parties, including patient representatives, lawyers acting on both sides of regulatory cases, and members of the forum who could bring a wider legal perspective, with a view to influencing the final decisions.

As proposals for legislation were imminent, it was unlikely that there would be time for the subgroup to produce a draft report, which could be consulted on in the normal way, and finally reach consensus on a final report. Instead, the sub-group, which met eight times after November 2000, produced a paper entitled "Issues for discussion" (reproduced at Appendix 1) and shared it at an early stage with officials from the Department of Health and the Lord Chancellor's Department .

Government decisions on the mechanism for health regulatory appeals were published in the autumn of 2001 in the Health Service Reform and Health Care Professions Bill, which at the time of writing (April 2002) is still before Parliament. Appendix 1 has been annotated to set alongside the views of the subgroup the corresponding provisions in the Bill. Thus Appendix 1 can be read as a detailed commentary on the proposals in the Bill for regulatory appeals. The sub-group stopped its work when the proposals for legislation were announced.

The thinking of the subgroup clearly influenced the Government's proposals on two issues in particular:

• The level at which appeals should be considered. The subgroup concluded that any new system(s) should have a critical mass of cases and have appropriately senior judicial involvement. Two possible models were developed, each involving a senior judge, and the subgroup provisionally favoured the option based on recourse by the registrant to the High Court (or the Court of Session). Government subsequently decided to adopt the preferred model.



• The possibility of an appeal to the courts in the public interest. The subgroup considered whether the right to appeal should be extended to complainants (it saw insuperable difficulties in doing so) and offered for discussion a limited role for the regulator (as "prosecutor") to appeal, after consultation with the complainant, and also a possible additional role for exceptional intervention by a senior lawyer appointed to represent the public interest. This last possibility was reflected in the provision in the Bill for the proposed Council for the Regulation of Health Care Professionals to be able to refer to the High Court cases where they consider that the action taken by the registration body is inadequate to protect members of the public. Another product of the sub-group's work was a detailed map showing the myriad of current appeals processes (this is at Annex A to Appendix 1). The sub-group concluded that in the future any proposed differences in arrangements for appeals by the different professions should have to be justified, and that there should be a presumption in favour of moving towards greater consistency. The paper at Appendix 1 suggests objectives which a new appeals system should serve and principles which should inform its design.

Refer: Appendix 1: Appeals against decisions by health regulatory bodies - Issues for discussion.

Enquiries:

Isabel Nisbet 020 7915 3575 (inisbet@gmc-uk.org)
Liz McAnulty 020 7333 6548 (liz.mcanulty@nmc-uk.org)

Working Party