Medical practitioners tribunal hearings

Step 2: decision on what action to take, if any

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Text alternative: step 2: decision on what action to take, if any

At stage two of a medical practitioners tribunal (MPT) review hearing, the MPT will consider their finding on impairment and consider what action, if any, is needed to protect the public.
At the sanction stage of a review hearing, the outcomes available¹⁴ to the MPT depend on the sanction in place at the time of the review hearing.
If the doctor’s registration is currently subject to conditions, then the outcomes available to the MPT are:¹⁵

take no further action - this allows the existing conditions to end when they are due to expire
revoke the current sanction of conditions immediately
revoke or vary any specific condition(s) imposed under a current sanction of conditions for the remainder of the current period
extend the current sanction of conditions from when it would otherwise expire for up to three years – when doing so, the MPT can revoke or vary any specific condition(s) imposed or impose new condition(s)
impose a different sanction of suspension for up to 12 months,¹⁶
erase the doctor, except in cases that relate solely to the doctor’s health and/or knowledge of English language.

The MPT should be mindful that where the review has been directed¹⁷ on the basis the GMC considers the doctor has failed to comply with any requirement imposed as a condition, and the MPT finds there has been a breach of conditions, the MPT cannot vary any specific conditions or direct a further period of conditions. The MPT may:

suspend the doctor for up to 12 months, or
erase the doctor, except in a health or language case.¹⁸

If the doctor is currently suspended from the register, then the outcomes available to the MPT¹⁹ are to:

take no further action - this allows the current sanction of suspension to continue and end when it is due to expire
revoke the current sanction of suspension immediately
extend the current sanction of suspension from when it would otherwise expire for up to 12 months
extend the current sanction of suspension indefinitely, in cases relating solely to health and/or knowledge of English language where the doctor will have been suspended for a continuous period of at least 2 years on the date the direction takes effect²⁰ and there is not currently more than two months before the date on which the period of suspension would otherwise expire²¹
impose a different sanction of conditions for up to three years, or
erase the doctor, except in cases that relate solely to the doctor’s health and/or knowledge of English language.

Where the MPT has made a finding that the doctor’s fitness to practise is no longer impaired, they should decide whether to allow the current sanction to expire or revoke it with immediate effect.
It is not open to an MPT on review, including an MPT considering both new and review matters, to find no impairment and issue a warning. If restrictive action is required to address the allegations, the MPT should have made a finding of impairment.
Where the doctor’s fitness to practise remains impaired but the level of risk the doctor poses to public protection has decreased since the last assessment of risk, it may be proportionate for the MPT to consider imposing a less restrictive sanction, or the same sanction for the same period or for a shorter period.
In cases where the MPT is of the view that there has been no material change in the level of risk the doctor poses to public protection since the last assessment of risk, it may be proportionate to consider imposing the current sanction of conditions or suspension for a further period.
Where the level of current and ongoing risk the doctor poses to public protection has increased since the last assessment, it may be proportionate for the MPT to consider imposing a more restrictive sanction or imposing the same sanction but for a longer period. However, if the MPT is of the view that the increased risk can still be managed through the current sanction, it may be appropriate to consider extending the current sanction of conditions or suspension for a further period.
When making their decision, the MPT should always remind themselves of their earlier conclusions to ensure that they have been, and remain, consistent with previous findings and have regard to the level of current and ongoing risk to public protection posed by the doctor (low, medium, or high). Whether the risk the doctor poses to public protection has decreased, stayed the same or increased since the last assessment of risk will inform the decision on what sanction is required to protect the public.
When deciding what sanction to impose, and for how long, the MPT should consider:

the initial sanction imposed and how that MPT applied any relevant sanctions bandings, along with the general guidance in Outcomes available to the MPT in Part C: Stage three - sanction of Section three: MPT hearings to assist their understanding of that sanction
any subsequent MPT decision on sanction if this is not the first review hearing
how the doctor has responded to the current sanction, and
what is the necessary and proportionate action to take at this stage to address the present level of current and ongoing risk to public protection.

In an early review, the MPT should also consider the reasons why an early review was directed as this may impact on what is an appropriate sanction.
In all cases, the MPT should consider when any new sanction will, or should, come into effect, having regard to how long is remaining on the current sanction.²² Where there has been an adjournment, the MPT should note the effect that any extension of the current sanction has had on its expiry date.
The MPT should also have regard to the general principle that where a doctor has been convicted of a serious criminal offence or offences, they should not be permitted to resume unrestricted practice until they have satisfactorily completed their sentence.²³ Similarly, no doctor registered as a sex offender should be able to hold unrestricted registration. However, each case should be considered on its merits and decisions should be taken in the light of the individual circumstances of the case.
In most review hearings, the sanction stage will follow immediately after the MPT has made its decision on impairment. Where there is a delay between the decision on impairment and consideration of what action, if any, is required in response, the MPT will need to take particular care to remind themselves of their earlier conclusion on risk before considering what has happened since the case was last before them and assessing the impact of any relevant additional evidence. This amounts to the MPT conducting an updated assessment of the current and ongoing risk to public protection posed by the doctor.
When conducting an updated assessment of risk, the MPT must avoid “double counting” evidence that previously informed, and was therefore taken into account in reaching, their earlier decision on impairment. Where there is relevant additional evidence, the MPT must consider it and identify any additional factors capable of increasing or decreasing the level of current and ongoing risk to public protection posed by the doctor. They should do this with reference to the guidance in Stage one: Impairment and clearly state the impact these additional factors have on their previous view of risk. It is this updated assessment of current and ongoing risk that should inform the MPT’s view on what sanction is a proportionate response.
The MPT should give reasons as to why the selected outcome is appropriate and where a sanction is imposed, why it is sufficient to protect the public, and why a more restrictive sanction is not necessary. The decision should include a separate explanation as to the length of sanction and why it should last for a particular period, if relevant.
Where the tribunal’s decision is to impose a sanction that is lower, or higher, than that suggested by the guidance, the tribunal should provide reasons as to why this is justified given the individual circumstances of the case. They must also explain how their decision relates to any submissions made by the parties.

Review hearings where there have also been new findings of fact

When considering sanction, the MPT should consider the most serious allegations found proved resulting in the finding of impairment and ensure that the sanction addresses those findings and the identified risks to public protection.

Adjournments

If it is not possible for the review hearing to conclude before the date that a sanction of conditions or suspension is due to expire, the MPT must consider extending the current sanction so that it remains in effect during the period of any adjournment.²⁴ This approach prevents a public protection gap from arising.
However, if the MPT is not satisfied that extending the current conditions would sufficiently protect the public during the adjournment period, they should consider imposing an interim order instead.²⁵

Reviews on the paper

Where a medical practitioners tribunal (MPT) or tribunal chair is reviewing a case on the papers, they should consider if the outcome agreed by the parties is sufficient to protect the public. The MPT or tribunal chair should also be satisfied that the information provided to the doctor makes clear the consequences of their agreement to the sanction. If they are not satisfied the agreed outcome is sufficient, if insufficient information has been provided, or there is doubt over the doctor’s capacity to agree to the proposed outcome, the MPT or tribunal chair must direct that a hearing should be held. If, for any other reason the MPT or tribunal chair feels that that the matter should be heard in full, they should make a direction to that effect.
Where a case is reviewed on the papers, the MPT or tribunal chair cannot impose an immediate sanction or direct a review hearing in relation to any sanction they impose. Where undertakings have been agreed between the GMC and the doctor, the MPT or tribunal chair should consider if the undertakings are sufficient to protect the public because in accepting these they would be revoking the sanction currently in place with immediate effect.

Any sanction must be proportionate, transparent and fair

For guidance on deciding what is a proportionate sanction to impose on review, the MPT should refer to the section on Any sanction must be proportionate, transparent and fair in Part C: Stage three - sanction of Section three: MPT hearings.

Outcomes available to the MPT at the sanction stage of a review or a new and review hearing

Take no further action – this allows the current sanction of conditions or suspension to end when it is due to expire

If the MPT is of the view that the doctor no longer poses a current and ongoing risk to public protection requiring restrictive action in response and has made a finding that the doctor’s fitness to practise is not impaired, it may be proportionate to take no further action. The effect of this is it will allow the current sanction to expire at the end of the sanction period. Whether this is proportionate will depend on the individual circumstances of the case and the reasons the current sanction was imposed.
In cases where the current sanction was imposed to maintain public confidence in the profession and/or maintain and promote professional standards, it will usually be more appropriate for the MPT to allow the current sanction to expire. In these circumstances revoking the sanction immediately could risk undermining the earlier decision made by the previous MPT that the sanction was needed for a certain length of time to specifically uphold and promote public confidence and/or maintain and promote professional standards.

Revoke the sanction of conditions or suspension immediately

If the MPT is of the view that the doctor no longer poses a current and ongoing risk to public protection requiring restrictive action in response, it may be proportionate to revoke the sanction immediately. Whether this is proportionate will depend on the individual circumstances of the case and the reasons the current sanction was imposed.
In cases where the current sanction was imposed to maintain public confidence in the profession and / or to maintain and promote professional standards, it is unlikely to be appropriate to revoke the sanction immediately. In these circumstances revoking the sanction immediately could risk undermining the earlier decision made by the MPT that the sanction was needed for a certain length of time to specifically uphold and promote public confidence and/or maintain and promote professional standards.
Revoking the sanction immediately may also be proportionate where the MPT has decided that the doctor’s fitness to practise remains impaired but is satisfied that undertakings agreed between the GMC and doctor are sufficient to protect the public. Undertakings restrict a doctor’s ability to practice and/or require them to do something to manage their health condition or address the deficiencies in their performance or knowledge of English language.²⁶ If undertakings are agreed, the MPT may take these into account when reaching its decision on sanction, provided that certain conditions are met.²⁷

Revoke or vary any specific conditions imposed under a current sanction of conditions for the remainder of the current period

Where the doctor’s fitness to practise remains impaired but the level of current and ongoing risk the doctor poses to public protection has decreased since the last assessment of risk, it may be proportionate for the MPT to revoke specific conditions or consider varying the order and imposing less restrictive conditions for the remainder of the current period.
Where the doctor’s fitness to practise remains impaired but the level of current and ongoing risk the doctor poses to public protection has increased, it may be proportionate for the MPT to consider varying the order and imposing more restrictive conditions for the remainder of the current period.
Where the hearing is following a direction for an early review on the basis that the doctor has indicated that one or more of the conditions are not workable and/or will not be supported by a specific body, there may have been no material change to the level of risk the doctor poses to public protection. In these circumstances, the MPT should carefully consider the reason for the previous conditions being imposed and not allow the review hearing to be used as a form of appeal against those conditions.
However, where alternative conditions can be identified that are workable, proportionate and achieve the overall aim of conditions, and they adequately address the current and ongoing risk to public protection posed by the doctor, consideration can be given to putting those in place instead. Where alternative conditions are not appropriate or proportionate, the MPT does not need to vary the current sanction. A lesser or greater sanction than that which is necessary to protect the public should not be imposed simply because certain conditions cannot be supported by a specific body.
For more information about conditions and to decide whether revoking or varying conditions is likely to be the proportionate response, the MPT should also refer to the guidance in Outcomes available to the MPT in Part C: Stage three - sanction of Section three: MPT hearings.
However, in cases where the review has been directed²⁸ on the basis the GMC considers the doctor has failed to comply with any requirement imposed as a condition, and the MPT has found the doctor has breached the current sanction of conditions, it is not possible for them to revoke or vary conditions. In these circumstances the MPT may:

suspend the doctor for up to 12 months, or
erase the doctor, except in a health or language case.²⁹

Where the current sanction is suspension, impose a different sanction on the doctor’s registration of conditions for up to three years
OR
Where the current sanction is conditions, extend it from when it would otherwise expire for up to three years – when doing so, the MPT can revoke or vary any specific condition(s) imposed or impose new condition(s)

Where the doctor is currently suspended and the MPT has found that their fitness to practise remains impaired, but the level of current and ongoing risk the doctor poses to public protection has decreased since the last assessment of risk, it may be proportionate for the MPT to consider imposing a sanction of conditions for up to three years.
In cases where the doctor currently has a sanction of conditions and the MPT is of the view that there has been no material change in the level of current and ongoing risk the doctor poses to public protection since the last assessment of risk, it may be proportionate to consider imposing the current sanction of conditions for a further period of up to three years.
For more information about conditions and to decide whether conditions are likely to be the proportionate response and if so, how long they should be imposed for, the MPT should also refer to the guidance in Outcomes available to the MPT in Part C: Stage three - sanction of Section three: MPT hearings.
However, in cases where the review has been directed³⁰ on the basis the GMC considers the doctor has failed to comply with any requirement imposed as a condition, and the MPT has found the doctor has breached the current sanction of conditions, it is not possible for them to revoke or vary conditions. In these circumstances the MPT may:

suspend the doctor for up to 12 months, or
erase the doctor, except in a health or language case.³¹

Where the current sanction is conditions, impose a different sanction on the doctor’s registration of suspension for up to 12 months
OR
Where the current sanction is suspension, extend it from when it would otherwise expire for up to 12 months

Where the doctor has a current sanction of conditions, the MPT has found that their fitness to practise remains impaired, and the level of current and ongoing risk the doctor poses to public protection has increased since the last assessment of risk, it may be proportionate for the MPT to consider imposing a sanction of suspension for up to 12 months.
In deciding whether suspension is a proportionate response in cases where the review has been directed³² on the basis the GMC considers the doctor has failed to comply with any requirement imposed as a condition, and the MPT has found the doctor has breached the current sanction of conditions, the MPT must be mindful that the only alternative to suspension that is open to them is to erase the doctor.
In cases where the doctor currently has a sanction of suspension and the MPT is of the view that there has been no material change in the level of current and ongoing risk the doctor poses to public protection since the last assessment of risk, it may be proportionate to consider imposing the current sanction of suspension for a further period of up to 12 months.
For more information about suspension and to decide whether it is likely to be the proportionate response and if so, how long it should be imposed for, the MPT should also refer to the guidance in Outcomes available to the MPT in Part C: Stage three - sanction of Section three: MPT hearings.

Where the current sanction is suspension, extend the sanction indefinitely in cases relating solely to health and/or knowledge of English language where the doctor will have been suspended for a continuous period of at least 2 years on the date the direction takes effect

In cases that relate solely to a doctor’s health or knowledge of English language the doctor cannot be erased from the medical register. In these circumstances, where the doctor currently has a sanction of suspension and the MPT is of the view that there has been no material change in the level of current and ongoing risk the doctor poses to public protection since the last assessment of risk, or the level of risk has increased, it may be proportionate to consider indefinite suspension provided the doctor will have been suspended for a continuous period of at least 2 years on the date the direction takes effect and there is not currently more than two months before the date on which the period of suspension would otherwise expire.
Factors that indicate indefinite suspension may be proportionate include, but are not limited to:

the doctor has not engaged with the GMC or provided meaningful evidence about their current fitness to practise during the previous periods of suspension and there is no indication the doctor is likely to start doing so
the circumstances of the case, including the doctor’s circumstances, are unlikely to change over the next 12 months, and/or
a further fixed period of suspension would not be sufficient to protect the public and/or would not be in the interests of the doctor.

Erase the doctor, except in cases that relate solely to the doctor’s health and/or knowledge of English language

Where the doctor has a current sanction of conditions, the MPT has found that their fitness to practise remains impaired, and the level of current and ongoing risk the doctor poses to public protection has increased since the last assessment of risk, it may be proportionate for the MPT to consider imposing a sanction of erasure if they consider that conditions or suspension would not be sufficient to protect the public.
Where the doctor has a current sanction of suspension, the MPT has found that their fitness to practise remains impaired, and the level of current and ongoing risk the doctor poses to public protection has increased since the last assessment of risk, it may be proportionate for the MPT to consider imposing a sanction of erasure.
For more information about erasure and to decide whether it is likely to be the proportionate response, the MPT should also refer to the guidance in Outcomes available to the MPT in Part C: Stage three - sanction of Section three: MPT hearings.
In deciding whether erasure is a proportionate response in cases where the review has been directed³³ on the basis the GMC considers the doctor has failed to comply with any requirement imposed as a condition, and the MPT has found the doctor has breached their current sanction of conditions, the MPT must be mindful that the only alternative open to them is to suspend the doctor.

Additional evidence that may be relevant to the decision on what outcome is proportionate

The following matters are not relevant to the assessment of current and ongoing risk to public protection which will have informed the MPT’s decision on impairment, but can be considered at the sanction stage when deciding what outcome is proportionate:

evidence about the impact that taking a specific type of action may have on patients or members of the public, or the doctor themselves, and/or
references and testimonials about the doctor’s character.

For more information, the MPT should refer to the guidance in Additional evidence that may be relevant to the decision on what sanction is proportionate in Part C: Stage three - sanction of Section three: MPT hearings.

The MPT's determination

The MPT’s determination should show that the MPT has considered their earlier conclusions at the impairment stage and had regard to the level of current and ongoing risk posed by the doctor (low, medium, or high) with reference to the parts of public protection that are engaged; patient safety, public confidence and/or maintenance of professional standards.
The MPT should give reasons as to why the selected outcome is appropriate and where a sanction is imposed, why it is sufficient to protect the public, and if relevant, why a more restrictive sanction is not necessary. The decision should include a separate explanation as to the length of sanction, if relevant.
Where the MPT’s decision is to impose an outcome that departs from this guidance, the MPT should provide reasons as to why this is justified given the individual circumstances of the case. They must also explain how their decision relates to any submissions made by the parties.
Any decision not to direct a review of a sanction of conditions or suspension should also be clearly recorded and explained. The exception is where the MPT decides to direct that the doctor’s registration will be indefinitely suspended. This is because there is no automatic further hearing of the case.³⁴
Where a matter has been reviewed on the papers, the MPT or tribunal chair should confirm whether they are satisfied that the outcome is sufficient to protect the public and explain the reasoning behind their decision. This will be particularly important where the decision is for a hearing to be held. At the subsequent hearing, the MPT will have sight of the decision reasoning.

Taking effect of directions and sanctions

In the absence of an appeal by the doctor, any direction made at a review hearing or new and review hearing takes effect after the appeal period.35 The appeal period is 28 days beginning with the date on which notification of the decision was served on the doctor.³⁶
The date a sanction itself will start, varies depending on the outcome imposed. The MPT should refer to section 35D of the Act to identify the relevant date.
In cases where the current sanction is suspension and the MPT have decided to direct that conditions should be imposed on the doctor’s registration, the MPT should consider whether they need to specify the date when the conditions will start. In doing so they must be mindful that the relevant date must be from the expiry of the current period of suspension or before the current sanction of suspension is due to expire.³⁷
Where the sanction directed by an MPT is the same or less restrictive than the previous direction, then the current sanction, including any specific conditions, will remain in place during the appeal period or until any appeal has concluded³⁸ and it is not necessary for the MPT to go on to consider imposing an immediate order.
However, where the current sanction is one of conditions and the MPT imposes a sanction of suspension or erasure, it should consider whether an immediate order is needed to protect the public.
If it is not possible for the review hearing to conclude before the date that a sanction of conditions or suspension is due to expire, the MPT must consider extending the current sanction so that it remains in effect during the period of any adjournment. This approach prevents a public protection gap from arising. The MPT will then need to consider the relevance of the new expiry date when they resume the hearing.

Immediate orders

The medical practitioners tribunal (MPT) only has the power to impose an immediate order at a review or new and review hearing when the current sanction in place is conditions, and they are directing a new sanction of suspension or erasure.³⁹ It is not open to the MPT to impose an immediate order of conditions at a review or new and review hearing.
When deciding whether an immediate order is appropriate, the MPT should consider the guidance on Immediate and interim order following sanction in Part C: Stage three – sanction of Section three: MPT hearings.
The MPT must give reasons for their decision on whether to impose an immediate order, with reference to any submissions made by the parties. The MPT should also refer to its decision on sanction and the reasons for it and ensure that any decision reached on whether to impose an immediate order is consistent.
Where the doctor is present and/or represented at the hearing, any immediate order imposed on their registration will take effect immediately. Where the doctor is not present or represented, the immediate order takes effect once notification of the order is served.

Interim orders

Interim orders are usually used to manage risk while a concern or allegation about a doctor’s behaviour, performance or the impact of a health condition goes through the fitness to practise process. However, there are limited circumstances at a review hearing when it may be appropriate to impose an interim order. This includes where the MPT needs to manage immediate risks in circumstances where the hearing has adjourned part-heard and the MPT is not satisfied that extending the current conditions would be sufficient to protect the public.
To decide whether to impose an interim order the MPT should consider the guidance on Immediate and interim order following sanction in Part C: Stage three – sanction of Section three: MPT hearings.
In cases where an interim order is imposed, the MPT should revoke the interim order when the new sanction takes effect. The exception to this is during a review hearing where there are also new allegations and the interim order is being used to manage risk relating to the new, and/or other, concerns or allegations in the fitness to practise process that have not yet been determined.

¹⁴Section 35D(4-14) of the Act.

¹⁵s35D(12).

¹⁶Where the review has been directed on the basis the GMC considers the doctor has failed to comply with any requirement imposed as a condition, and the MPT has found there has been a breach of conditions, the MPT only has the power to suspend or erase the doctor in accordance with s35D(10) MA 1983.

¹⁷ Under s.35D(9A) of the Act.

¹⁸ Under s35D(10) of the Act.

¹⁹ Section 35(D)(5).

²⁰Further information can be found in the section Taking effect of directions and sanctions.

²¹Section 35D(6) of the Act.

²² Further information on when sanctions take effect can be found in the section Taking effect of directions and sanctions.

²³ CHRE v GDC and Fleischmann.

²⁴ Under Rule 22(5).

²⁵ To decide if an interim order is appropriate, the MPT should refer to the section on Interim orders.

²⁶Provided for by Schedule 4 paragraph 1(2C) of the Medical Act 1983 (as amended).

²⁷The MPT should consider the guidance Undertakings at medical practitioner tribunal hearings and undertakings should normally follow the wording in Agreeing a doctor’s undertakings.

²⁸ Under s.35D(9A) of the Act.

²⁹Under s35D(10) of the Act.

³⁰ Under s.35D(9A) of the Act.

³¹Under s35D(10) of the Act.

³² Under s.35D(9A) of the Act.

³³ Under s.35D(9A) of the Act/

³⁴But two years after the indefinite suspension takes effect, the doctor can ask for it to be reviewed.

³⁵Schedule 4 paragraph 10 of the Act.

³⁶s40(4) of the Act.

³⁷s35D(12) of the Act. The MPT should also note that the specified starting date should not be sooner than 28 days after the direction has been made as per Schedule 4, paragraph 10 of the Act.

³⁸Schedule 4, paragraph 11 of the Act.

³⁹Under section 38 of the Act.

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