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A conversation with... David Pearl

His Honour Judge David Pearl has been Chair of the Medical Practitioners Tribunal Service (MPTS) since June 2012. The MPTS took over the adjudication of doctors’ fitness to practise from the GMC in order to create a system independent of the investigation process. Judge Pearl recently met with Gareth Gillespie to reflect on the first year of the MPTS and what further plans he has in store for the organisation.

You have emphasised your model of adjudication as being one that ensures total independence from the investigatory process. What are the advantages of an adjudication process that is independent from the regulator?

Everyone has the confidence – the medical profession, patients (and we are all patients), the medical defence organisations, etc – that decisions taken are totally independent of the GMC, in a separate function, with all training and selection of panel members down to the MPTS.

We have a quality assurance group, which I chair, and which looks at the vast proportion of our decisions to quality assure them and pick up any learning issues. I ensure these go back into training requirements. Rather than us questioning panel decisions, our focus is on assessing whether the reasons given for the decision are clear enough in the written determination.

Investigation and adjudication should be entirely separate, rather like the criminal courts – the Crown Prosecution Service makes a decision on whether to prosecute and the courts decide whether they are guilty or not

Previously, the GMC had a similar review group – but this meant the GMC was the prosecutor and then reviewed its own decisions, and that was clearly wrong. Investigation and adjudication should be entirely separate, rather like the criminal courts – the Crown Prosecution Service makes a decision on whether to prosecute and the courts decide whether they are guilty or not. The GMC gets the complaint, investigates, and makes a decision whether they are going to refer the matter for adjudication; we take over and make a decision based on whether the facts are as proved, whether there is impairment, whether there should be a sanction – and that’s all up to us; the GMC plays no part at all.

What are your views on other models of adjudication?

Our model certainly fits into this kind of disciplinary process – I believe you need a panel, rather than one person making the decisions, and that the panel should be a mixture of medical and lay members. I do know, for example, that pharmacists have a different model of adjudication – the chairs of their panels are legally qualified and therefore they do not use legal assessors. As a model I think ours is the right one, especially when we make the changes that I feel are necessary.

Have there been any criticisms of this model?

When I have spoken at conferences I have been asked: “How can you call yourself independent when the GMC control your budget, and your salaries are paid by the GMC?” The model that has been worked on and agreed is that we are part of the wider GMC family; in the context of the regulation of the profession, that is the right model. It is the best model for disputes, in my view, between the registrant and the regulator.

As the adjudicator for all doctors in the UK, the MPTS has an enormous responsibility to protect the public by ensuring standards are maintained across the medical profession. Chairing such an organisation must be extremely demanding – what has best equipped you for this role?

I started out in academic teaching but 20 years ago I became a judge – and what is probably the most relevant role to my current one at the MPTS is my time as President of what was then the Care Standards Tribunal. Sponsored by the Department of Health, the tribunal heard appeals stemming from decisions made by regulators in relation to children’s homes and child minders. We would also deal with matters involving social workers who may have been suspended from work, or who felt they were being restricted in the way they work. Appeals were heard on a range of matters; one example was a frontline social worker involved in the Victoria Climbie case, who felt she was being used as a scapegoat.1

I also have experience in establishing a tribunal – which is what I did with the Care Standards Tribunal. I also had six years as a Commissioner at the Judicial Appointments Commission, overseeing such appointments from the High Court down, and spent two years at the Judicial Studies Board – now the Judicial College – where I was responsible for training all judges. My principal responsibility was preparing judges for the Human Rights Act, which at the time was bringing the European Convention on Human Rights into UK law.

When the position at the MPTS came up, I thought it sounded very interesting and was something to which I had a lot to offer.

You have been in the position for just over a year – what are the main challenges you have seen so far?

Reducing the amount of time that hearings take – at the moment, the rules we have inherited are rules that do not have any real case management built into them. It’s certainly my view and one we all share. Better case management means more work is done in advance of a hearing, in terms of making sure all documents have been provided to both parties, ensuring all witness statements have been submitted, and resolving all preliminary legal arguments – if there are any – at an earlier stage.

It must be in the interests of everyone – it certainly is for doctors and the GMC – that cases are heard and decisions are made efficiently
It must be in the interests of everyone – it certainly is for doctors and the GMC – that cases are heard and decisions are made efficiently. Case management really is the key in ensuring hearings can get straight to the evidence and into hearing the witnesses, rather than days being taken up with matters that really should have been addressed at the pre-hearing stage.

Another area I have been keen to deal with is the decision-making by the panels. When they reach their decisions, we want to make their reasons clear and easy to understand. Decisions are essentially comprised of three things: firstly, the panel has to make a decision based on fact; secondly, they must decide – based on the facts – whether there has been misconduct and, if so, if it is of the kind to warrant a finding of impairment; and thirdly, what is the sanction? These decisions must be reasoned – for example, the GMC may have asked for erasure of a particular doctor, but the MPTS panel has decided on another route: this decision must be explained in full. Annual training sessions have now been put in place for our existing panel members, with induction training for new members.

What is the timescale for achieving the level of change you wish to see at the MPTS – and what else is on the agenda?

Over the next 12 months we will be working hard to make these changes happen. We have also introduced a set of amendments to our 2004 set of rules, many of which are of a technical nature but are primarily designed to make hearings more efficient.

The Department of Health will be consulting on some other new changes – which will need amendments to the Medical Act – at the end of the year, but they are broadly split into four areas:

Cost sanctions
We want to ensure that case management has some teeth to it – and the best way of doing that is to introduce a cost sanction

 
We want to ensure that case management has some teeth to it – and the best way of doing that is to introduce a cost sanction. If the case manager says that your document must be available by a certain date, and it’s not, and this then involves an adjournment while the document is produced, then there is a considerable cost incurred – and of course it’s a cost to the medical profession, because the GMC is a charity whose money comes from the registrants; it’s the registrants’ money that is being wasted.

To have a cost sanction, which I don’t envisage we’d use very often – but it’d be there – is to remind everyone that if they don’t do what the case manager has instructed they will find that there is a cost implication to that, which could be substantial. Other tribunals have this approach. The GMC would be subject to the same sanction, as well as doctors’ representatives.
We want to ensure that case management has some teeth to it – and the best way of doing that is to introduce a cost sanction

GMC’s right to appeal

The model of adjudication we have adopted is that of being operationally separate from the GMC, but still within the GMC family – the decision-making process is entirely separate and independent of the GMC. We are seeking to underline this independence by providing the GMC with a right to appeal – at the moment doctors have this, but the GMC doesn’t, and they ought to be able to appeal a decision they don’t agree with.

Legal assessors

Legal assessors play a very important role but in some cases they are not really necessary – for example, it might be a review case or an interim order panel, where there isn’t much law involved. All you really need is a well trained chair. What I would like to move towards is discretion – where they are only appointed in cases where they are needed. At the moment legal assessors are mandatory.

A statutory base

At the moment, we don’t exist in statute – we are essentially a creation of the GMC. It is very important that we are given a statutory base, and work is being done to make us directly accountable to parliament.

Do you have any advice for MPS members who are unfortunate enough to face an MPTS hearing?

Preparation is the key for any doctor who finds him/herself in front of the panel. The witness statement is the key – this should be made as comprehensive a document as possible, covering all the issues to be discussed by the panel. Our new rules will provide an opportunity to the doctor to present his case in writing, in advance of the hearing.

Preparation is the key for any doctor who finds him/herself in front of the panel

We are fully aware it is not an easy time; facing a fitness-to-practise panel or interim order panel is difficult, and it may be the first time a doctor has faced any formal body of any kind. We do our best to ensure that everyone involved is as comfortable as possible, such as making sure breaks are given if the doctor needs it during sessions.

At a glance: David Pearl and the MPTS

His Honour David Pearl became Chair of the Medical Practitioners Tribunal Service on 11 June 2012.

Judge Pearl has held a range of senior judicial appointments throughout his career.

He is now responsible for managing all fitness to practise hearings for doctors registered in the UK.

Judge Pearl, 68, began his career in academia as a Lecturer in Law at the University of Cambridge. He was called to the Bar in 1968 and became a circuit judge in 1994.

He was President of the Immigration Appeal Tribunal from 1997 to 1999 and spent eight years as President of the Care Standards Tribunal.

Before joining the MPTS, Judge Pearl sat as a Commissioner of the Judicial Appointments Commission and Director of Studies at the Judicial Studies Board.

The Medical Practitioners Tribunal Service runs all doctors’ fitness to practise hearings and interim order panel hearings. It sits in the St James’s Building, Oxford Street, Manchester.

The MPTS is part of the GMC, but it is operationally separate.

Since June 2012, the MPTS has adjudicated in a number of very high profile cases.

A number of efficiency savings have been made. For example, shorthand writers have been replaced with digital recording in hearing rooms.

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