Being proportionate, transparent and fair
- The overriding objective of the MPTS is to ensure that tribunals deal with cases consistently, fairly and justly. MPTS tribunals must therefore be proportionate, transparent and fair in their approach to decision making at hearings.
Being proportionate
- To be proportionate, a tribunal must ask themselves, in the context of the individual case and decision being made, what is required and no more than necessary to meet the GMC and MPTS’ legal duty to protect the public in a timely way. To assess what is proportionate, tribunals should be clear on the options available to them.
- Where appropriate, tribunals can consider the impact on those affected by the decision. This will include the interests of individual patients and members of the public, colleagues and the interests of the doctors the GMC regulates, including the individual doctor. But in all cases, the need to protect the public from any risk posed by a doctor, is more important than the interests of any individual.
- To be proportionate when considering the need for an interim order, the tribunal will need to consider any real and immediate risk to protection of the public, the public interest and/or the interests of the doctor themselves and weigh and balance these against the adverse consequences that interim action has on the doctor.
Being transparent
- Transparency is the basis for establishing trust that tribunal decisions and the actions taken by tribunals are protecting the public. Producing decision making guidance and being open and clear in a timely way about the steps taken in response to concerns about doctors enables patients, members of the public and the doctors regulated by the GMC to understand regulatory decisions and hold tribunals to account. It may also help others in similar situations make decisions that will help keep patients and members of the public safe.
- To be open about how decisions are made, information that informs tribunal decision making is made accessible. This includes publishing decision making guidance on the MPTS website.
- To make decisions accessible, tribunals are expected to give reasons and record decisions in a way that can be understood by patients, members of the public and doctors, using plain and clear language.
- The GMC’s Publication and disclosure policy sets out the position in relation to the routine publication and disclosure of specific fitness to practise information. To be transparent about when regulatory action is required, tribunal decisions are published on the MPTS website and on the GMC’s medical register unless this is not appropriate under the policy. Information is also shared with interested parties, and they are given access to information that’s relevant to them, provided it’s appropriate to do so and in line with relevant legal obligations.
Being fair
- To be fair in their approach, tribunals should act reasonably, be consistent, be impartial and be aware of the risk of bias and how to mitigate it. Tribunals should:
- act independently, in good faith and for a proper purpose
- comply with relevant legislation
- follow all relevant policies and guidance unless there is a reason to make an exception
- consider and apply relevant case law
- consider all available information relevant to the decision they are making
- ask probing questions to properly scrutinise and assess the evidence
- carefully weigh and balance the evidence available to them that is relevant to the decision they are making
- make reasonable and objective decisions based only on evidence, and
- give reasons for the decision which includes an analysis of the evidence and explains the weight applied to different factors relevant to the decision.
- The evidence considered by a tribunal may include information from a variety of sources, including doctors, experts, complainants, and other witnesses. As the fitness to practise process can be stressful for those involved, this can impact on how individuals engage in the process and on the quality of the information they provide.
- To get the best evidence from witnesses to support fair decision making, it is important that individuals involved in all stages of the fitness to practise process are treated with understanding, compassion and respect. Having quality evidence from these individuals will support good decision making and tribunals should ensure that witnesses are enabled to give the best evidence they can.
- MPTS tribunals are supported to be fair in their approach through policies and guidance, regular training, and feedback.
Complying with equality rights legislation
- MPTS tribunals must be aware of, and adhere to, equality and human rights legislation. This includes having regard to the Equality Act 2010 and the right to a fair hearing in Article 6 of the European Convention of Human Rights, incorporated in Schedule 1 of the Human Rights Act 1998.
- Training for MPTS tribunals on equality includes reference to guidance found in the Equal Treatment Bench Book and the GMC’s Equality, Diversity and Inclusion Policy.
Differences in culture, faith and communication
- The same professional standards are expected of all doctors regardless of their cultural background, faith, or specific circumstances. However, a doctor – or another individual involved in the fitness to practise process – may think, feel, or behave differently because of their cultural background or faith. It is therefore important that tribunals are aware of how cultural, faith or other differences, such as a disability, may affect the way an individual engages with the fitness to practise process and/or communicates at a hearing.
- Tribunals should not make assumptions that because of a doctor or a witness’ cultural background or faith, they will think, behave or feel in a way which is associated with that cultural background or faith. Tribunals must treat doctors and witnesses as individuals. Decisions should be informed by information that’s provided to the tribunal about an individual’s cultural background or faith and the impact it has had on that individual’s behaviour, performance, or engagement in the fitness to practise process.
- Tribunal members should also be aware of how their own culture, faith or other personal differences might shape their assumptions about others. They must critically review any personal and professional biases that may affect their own decisions and set aside any personal feelings or beliefs to maintain an open mind. To support them with this, training is delivered on matters such as cultural competence and bias.
Communication during a hearing
- When a person is not speaking in their first language, they may use the conventions of their first language to frame and structure sentences, often translating as they speak. Their pronunciation and/or intonation may also be expressed differently because of speaking in a language that is not their first language and as a result they may not adhere to the convention or display the subtleties or nuances of the language they are speaking in. There may also be differences in the way that individuals use non-verbal cues to convey a message including eye contact, gestures, facial expressions, and touch.
- Disabilities, such as neurodiversity, can also have an impact on an individual’s cognition, social and written communication, and the perception of an individual’s behaviour. Some disabilities may lead to individuals having a literal understanding of language, appearing blunt, aggressive, and/or having difficulties reading facial expressions or tone of voice.
- When a person is not writing in their first language, they may use the conventions of their first language to select information, frame, and structure sentences. This may be reflected in their linguistic accuracy and in how they present and organise information. As a result, their presentation or use of vocabulary may not reflect what is culturally and/or contextually appropriate, in the additional language.