Regulation of Health and Social Care Professionals Consultation

practise process to be considered in the round. Regard must be had, amongst
other matters, to the manner of the appointment of Panellists and their terms of
office, the existence of safeguards against outside pressures and the question of
whether it presents an appearance of independence. 14
9.17 Moreover, as noted earlier in this Part, several court cases have considered
arguments that fitness to practise adjudication by the regulators fails to secure
the requirements of an independent and impartial court under Article 6, and have
rejected them on the basis that the legislation provides for subsequent control of
the fitness to practise decision by a court of full jurisdiction. Such judicial control
on issues of both fact and law will continue to apply after the abolition of the
Office of the Health Professions Adjudicator in the case of each regulator.
9.18 Notwithstanding the Article 6 argument, we think there are substantial benefits to
be gained from the separation of investigation from adjudication, not least of
which is ensuring public and professional confidence in the decisions of the
adjudicator. We therefore believe that the new legal framework should ensure
such separation. The Office of the Health Professions Adjudicator represents the
high water mark for securing an independent adjudicator. This model could
clearly be seen as attractive in law reform terms, but as the Government has
come to a firm decision not to pursue the proposal, we have not considered it.
The rest of the discussion in this Part therefore assumes that the regulators will
continue to have formal responsibility for adjudication.
9.19 We believe that the legal framework should ensure that the regulators’ fitness to
practise procedures establish some degree of separation between investigation
and adjudication. The precise ways that this could be achieved relate mainly to
the appointment process for Panel members and prohibitions on Panel
membership. These are discussed in detail later in this Part.
9.20 In addition, the General Medical Council has published proposals to reinforce the
separation of the investigation and adjudication functions, including the
establishment of a Medical Practitioners Tribunal Service. Although the Tribunal
is not fully independent of the General Medical Council and some have
questioned whether the proposed governance arrangements will separate
effectively the Tribunal from the day-to-day management of the Council, 15 we
believe that the proposed reforms would introduce a high degree of
independence into the adjudication of fitness to practise cases. Furthermore, the
new system would reflect many of the policy ambitions and procedural changes
proposed by the Office of the Health Professions Adjudicator. 16
14 Bryan v UK (1995) 21 EHRR 342 at [37].
15 See, for example, Administrative Justice and Tribunals Council, Fitness to Practise
Adjudication for Health Professionals: Assessing Different Mechanisms for Delivery (2010)
(letter to the Department of Health) and Office of the Health Professions Adjudicator,
Written evidence to the Health Select Committee (GMC 09) (2011) para 3.2.
16 Office of the Health Professions Adjudicator, Reform of the fitness to practise procedures
at the GMC: The future of adjudication and the establishment of the Medical Practitioners
Tribunal Service: A Paper for Consultation (2011).
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