Proposals for a tribunal within the GMC to continue adjudicating on doctors’ fitness to practise are not sufficiently independent, a defence body has claimed.

The MDU told a government consultation that it’s vital that any tribunal is genuinely independent from the GMC and said it did not see how this could be achieved in the preferred option.

The previous administration wanted to transfer adjudication to a new Office of the Health Professions Adjudicator, with the GMC just retaining its role in investigating and prosecuting fitness to practise cases. The separation of these functions was first proposed by Dame Janet Smith in the Shipman Inquiry.

However, as part of the “bonfire of quangos”, the new government’s preferred option is to bin the fledgling OHPA and let the GMC to continue to decide on the sanctions imposed on doctors through a separate disciplinary tribunal.

Dr Mike Devlin, head of advisory services at the MDU, said: “While we support the motivation for the suggestion that the GMC could set up a separate disciplinary tribunal, we do not see that such a body, which would remain under the auspices of the GMC, will ever be sufficiently independent. We are also concerned that attempts to try to make it independent will be more costly than the current system, with doctors having to bear these additional costs.

“Our support for a separate adjudicatory body was based not only on the principle of independence, but was also borne out of our frustration with regulators’ fitness to practise procedures a few years ago. Happily, things have moved on and more recently the GMC has been willing to discuss changes to its procedures, for example to case management and the conduct of fitness to practise cases. This change in the GMC’s approach goes some way to meeting some of our past concerns and we welcome the GMC’s proposals for more independent adjudication in the consultation document. We consider their willingness to consider legal chairs, to be central to any improvements in the procedure.”

The MPS is also disappointed by the government’s preferred option and said there should in effect be an OHPA within the GMC “with an independently appointed president and an independent doctors’ disciplinary tribunal, ideally within the remit of the Administrative Justice and Tribunals Council”.

The government is to abolish 192 government agencies, merging another 118 and substantially reforming a further 171.

The board steering the new adjudicator on doctors’ fitness to practise is taking shape.

Two non-executive directors have been appointed to the Office of the Health Professions Adjudicator which, from 2011, will adjudicate on the cases brought before it by the GMC.

It is hoped that the separation of investigation from adjudication through the creation of OHPA will demonstrate that fitness to practise decisions are fair and effective and separate from the profession, regulator and government.

The newly appointed non-executive directors, Andrew Colquhoun and Pamela Charlwood, will work with the chair Walter Merricks to oversee the creation of this new independent body and regulatory system.

Colquhoun is chairman of the investigation committee of the Institute of Chartered Accountants, while Charlwood is vice chair of the Hampshire Partnership NHS Foundation Trust. Merricks, who becomes chair of OHPA on 1 November, has been the chief financial ombudsman.

Ian Barker, an MDU solicitor, welcomed the progress. “It’s right that the body that prosecutes does not adjudicate as well - it’s a basic principle of fairness,” he said. 

He added that the OHPA is in the interests of doctors because while the public think the GMC goes easy on doctors, in reality, the opposite is true.   

This split in role was recommended by Dame Janet Smith, who presided over the Shipman Inquiry, and the GMC will in future be confined to investigating complaints, gathering evidence, and ‘prosecuting’ cases.

The General Optical Council will follow the GMC in losing its adjudication role to the new office, and all healthcare professions will eventually abide by the same system.

It represents a significant step away from self-regulation, and follows an increase in lay representation within the GMC. Last year, the GMC also controversially changed the burden of proof required in making fitness to practise decisions. The civil standard of proof is now applied, so allegations no longer have to be proved beyond reasonable doubt but on the balance of probabilities.

It is hoped that OHPA’s development provides an opportunity to improve case management.

MDU’s Barker believes the length of hearings and their cost could be reduced if the OHPA used legally qualified chairs on fitness to practise panels.

He said: “As it exists, a legal assessor advises the panel. But, gone are the days when you had a panel of 12 doctors needing independent legal advice. If you had a legal chair, they could make their own legal determinations and it would cut down on the considerable amount of time spent dealing with legal aspects.”