MPTS Hearings
Appeals
It is inevitably the case that a number of doctors feel aggrieved by the outcome of a GMC investigation or an MPTS determination and they seek advice on appealing. It follows there are numerous reported cases every year in which an MPTS decision faces an appeal, over the last few years there an average of approximately a dozen each year.
The route of appeal depends on the stage in the process and decision that is being appealed. Bringing an appeal is not to be taken lightly, they require very careful consideration in selecting the grounds, some types of appeal first require permission and they are costly to pursue.
Turning first to the appeal that is available to you as of right, as opposed to an appeal in which you must first seek permission; Section 40 of the Medical Act 1983 provides you with the statutory right to appeal in respect of certain MPTS decisions.
This statutory right of appeal applies to MPTS decisions where you have been erased, suspended or a period of suspension has been extended, conditions imposed or varied or conditional registration extended and where your application to restore your name to the register has been refused.
- Missing from this list is the sanction of a Warning. Where you seek to appeal under Section 40 you must do so within 28 days on which the decision was served on you.
- Time limits are strictly enforced with any appeal and so it is important to exercise great care in acting swiftly to protect your appeal rights.
- MPTS tribunals will commonly provide you with the written judgement at the hearing, it may be posted and it will be published.
- Any such method will be effective service on you of the decision and time will run from effective service. Where you appeal under Section 40 you must appeal to the High Court in England & Wales unless your name on the register is in Scotland or Northern Ireland in which case it is to the Court of Session or High Court of Justice in Northern Ireland respectively.
- The Court has the power dismiss your appeal, allow it and quash the direction or variation appealed against, substitute its own decision for that of the lower Tribunal or remit the case for a hearing before a new Tribunal.
The Court may also order costs and the GMC may appear as a respondent and will be deemed so for that purpose.
- Where the Statutory right to appeal is not available the alternative route of appeal is judicial review.
- The GMC and the MPTS are public bodies which renders their decision potentially amenable to judicial review. Judicial review may fill in the gaps left by Section 40, so that decisions in respect of Warnings or GMC investigations and GMC decisions, substantive or procedural, may be liable to review.
Judicial review may fill in the gaps left by Section 40, so that decisions in respect of Warnings or GMC investigations and GMC decisions, substantive or procedural, may be liable to review.
Unlike the Section 40 challenge, judicial review is not available as of right, it is a remedy of last resort and there are a number of steps to go through including following the Pre-Action Protocol for Judicial Review and passing a first permission stage which will usually take place on the papers and before a substantive hearing will be allowed.
Even where a hearing may be permitted to proceed the grounds for judicial review are restricted to illegality, irrationality or procedural impropriety.
The grounds are not mutually exclusive and accordingly several can be argued in an application.
An MPTS decision may be illegal because a Tribunal misdirected itself in law, exercised a power wrongfully or improperly.
The test to prove illegality is high, it must be manifestly excessive and Tribunals are afforded a hight degree of discretion. Time and again the High Court has stated that MPTS Tribunal members are expert in their role and this renders the High Court slow to usurp their decisions.
The classic formulation of the ground of irrationality is a decision that “is so unreasonable that no reasonable authority could ever have come to it”. This is referred to as Wednesbury unreasonable following the 1947 case by that name. Again, it is difficult test to meet and though arguments are more beneficially framed as to whether a decision was proportionate. The third ground of possible review relates to procedural unfairness.
This ground would provide scope for argument where proper steps have not been followed or bias arises and either the GMC or MPTS have not followed their own rules. There are strict time limits in relation to any application which must be made as soon as practicable and at most 3 months from the date of the decision. The High Court has jurisdiction. Where a doctor has been successful in relation to their review the Court, it may quash the decision, require the GMC/MPTS to carry out its duty or restrain them from acting beyond their powers. Other remedies include a declaration as to a party’s rights, an injunction or damages.
Appeals are an expensive process and costs are usually awarded to the successful party, that is the case whether that is through the Section 40 route or judicial review. It is frankly a difficult task succeeding on an appeal and we would always advise very carefully on proceeding.
Even where you are entirely successful on all grounds of your appeal the costs are subject to review and we would generally suggest that you should only expect to recover two thirds or perhaps three quarters of your total costs spend. A more likely outcome is that you are successful on only some of your grounds of appeal or indeed that all of your grounds are unsuccessful. In those cases there would be a further reduction in costs and in the latter case you would also have to pay the GMC’s costs. An appeal can easily cost approximately £10,000 to prepare and quite frankly could readily be double that amount depending on complexity and seniority of counsel.
Please note that this is an overview only of the salient issues relating to appeals and cannot be relied upon as advice on your case. We have excluded information on appeal routes available to the GMC, by the PSA and in relation to appeals at different stages of the GMC and MPTS process. It is outside the scope of this broad overview. For full advice on procedure and relevant legal issues please contact us directly and we will be pleased to assist you.
