Appeals from GMC Decisions
GMC APPEALS AND JUDICIAL REVIEWS
Many doctors are dissatisfied with the outcomes of General Medical Council proceedings and in particular the sanction imposed upon them. A number of doctors subsequently seek legal advice about the merits and prospects of success of appealing a decision of the GMC. Doctors Defence Service (DDS) provides legal advice and representation in the appeal courts to doctors where a doctor wishes to appeal. DDS lawyers give clear advice about the strengths of the doctors appeal case, the merits and demerits of an appeal, costs risks, and the overall prospects of success on appeal.
Appeals and Judicial Reviews: A doctor might choose to Appeal or alternatively issue judicial review proceedings in order to challenge a decision of the General Medical Council (GMC). Where there is a statutory right of appeal from a GMC decision, the statutory instruments will set out the appeal route. The forum will usually depend on the part of the UK (England, Wales, Scotland, Northern Ireland, other Island territories) in which the doctor is resident or has practised. Where there is no statutory right of appeal the decision of the GMC may be amenable to Judicial Review. A Judicial Review (JR) will often look at narrower issues than an Appeal Court can examine. A JR must be lodged in the shortest possible time after a public body (such as the GMC) has made a decision and, in any event, within three months at the latest (in most JR cases).
Appeals from Fitness to Practise Panel (FTPP) Decisions on Sanction
The GMC imposes sanctions on many doctors in Fitness to Practise (FTP) proceedings. Many doctors feel that the sactions are unfair, disproportionate and have a stigmatising element to them. Some doctors choose to appeal.
Time Limits: An appeal lies to the High Court or its equivalent in the countries of the United Kingdom (UK). An Appeal Notice must be lodged within 28 days of notice of a decision being served on a doctor. The time to lodge an appeal is very strict and a doctor who fails to lodge an appeal notice within the limitation period is unlikely to be able to advance an appeal at a later stage. A doctor who wishes to appeal must act quickly so as to protect their position.
Where a doctor has attended a hearing and a GMC panel has adjudicated upon a matter in many cases the Notice of Decision is served upon the doctor while they are at the hearing. The doctor is often asked to sign confirmation that they have received the determination of the panel. Alternatively, where the GMC has not formally servced notice of the decision, the decision will be posted and will be deemed to have been served within a couple of days of postage (or, in some circumstances, later, where a doctor can prove that they did not receive notice of the decision until a certain point in time).
Funding: In some circumstances a doctor may be entitled to legal aid. Where that is not the case, private fees will be payable to the lawyers that the doctor instructs.
Costs Risks: Where a doctor loses all or some of their appeal, they might additionally have to pay the costs of the GMC.
Role of the Appeal Judge: Under Part 52.11(3) CPR the appeal court may interfere with the decision of a lower court or tribunal (such as the GMC) where the decision is (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. However, guidance from the higher appeal courts makes it plain that it is only significant errors that may lead to such a judgment by an appeal court. In R (M) v Criminal Injuries Compensation Panel [2001] EWHC (Admin) 720 [44], Hooper J (as he then was) stated:
“It is well established that a[n appeal] court when considering reasons given by a decision-maker, must be careful not to construe them “in a pedantic and nit-picking spirit”. The court should be careful “not to seize on occasional omission and infelicities” as a ground for granting judicial review or allowing an appeal (see Lord Bingham CJ also in paragraph 46 of R (Oyston) v The Parole Board and Others)” [Read Full Law Report (External Link)].
Judicial Review has a different, narrower scope than appeals and a judge will sometimes be limited in the relief that can be granted. Further, relief is discretionary, even where a public body such as the GMC has fallen into error. Judicial Reviews mostly look at whether a decision of a tribunal was unlawful, unreasonable, or irrational. Where there is a right of appeal, judicial review is often not open to an appellant. Even where it is, it is important for both the lawyers and the doctor to make a careful assessment as to when and if a judicial review is appropriate. Permission has to be sought to bring a judicial review, whereas an appeal is of right because no permission is needed under the statute.
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Many doctors will be of the view that their case warrants interference by an appeal court. However, numerous appeals (by far the majority, in our view) are unsuccessful where appellant doctors have such a view, whatever the competence and skill of the advocate who is instructed to represent the doctor. appeal grounds therefore must be chosen with care. They should be arguable and have merit, and be likely, if to lead to some form of relief (such as the matter being remitted back to the GMC for further consideration or a rehearing of parts of all of the case).