Regulation of Health and Social Care Professionals Consultation

Provisional view
10.44 In our view the present system that allows the CHRE to refer cases to the higher
courts has proved a useful tool for the purposes of public protection. This function
is consonant with the CHRE’s supervisory role over the regulators since it
provides a hard-edged check on whether fitness to practise decisions have been
made in a way that promotes the health and wellbeing of the public. Although this
system has an inherent element of double jeopardy, it has been accepted that
this is justified because of the importance of public safety. 33
10.45 The CHRE’s section 29 power has had several years to bed down with fewer
recent cases making their way to a final hearing. This may be indicative of the
current legal framework operating efficiently or it may be for other reasons. The
CHRE has stated that financial considerations have not been a relevant
consideration. We welcome further evidence on this point. We propose that the
present section 29 should be retained.
10.46 The General Medical Council’s proposed right of appeal – which has received
support from the Health Select Committee – may also need to be provided for in
our scheme. 34 The Council has argued that the right of appeal would reinforce the
clear separation of the investigation and adjudication functions, whilst helping to
create an independent identity for the new tribunal service. 35 Furthermore, it has
been said that such an appeal would be a solution in cases where fitness to
practise panels make decisions that do not stand up. 36
10.47 The CHRE has argued that the proposed right of appeal would create confusion
arising from the potential for duplication of efforts, resources and overlapping
responsibilities. 37 The CHRE has also raised concerns about how the right of
appeal would work in practice, particularly if both the CHRE and General Medical
Council wished to appeal the same decision. The CHRE has suggested that a
way to reconcile these issues is to provide for a method whereby the General
Medical Council could formally refer a case to the CHRE. The CHRE would then
consider the referral along with the other cases it was considering.
10.48 In our view, pragmatic solutions could be found to the potential practical problems
raised by the coterminous exercise of two separate processes, although doing so
could have cost implications. More difficult is the question of principle – should
both bodies have essentially the same power; and if not, which should lose it?
10.49 The problem arises because the same (in effect) right of appeal provides each
body with a solution to quite different problems. For the CHRE, it provides an
important tool for practical oversight of the operation of the regulators; for the
General Medical Council it is both a consequence of and reinforces the
33
Council for the Regulation of Health Care Professionals v Ruscillo [2004] EWCA Civ 1356;
[2005] 1 WLR 717 at [41] to [42].
34 Annual Accountability Hearing with the General Medial Council, Report of the House of
Commons Health Committee (2010-12) HC 1429, para 40.
35 General Medical Council, The Future of Adjudication and the Establishment of the Medical
Practitioners Tribunal Service (2011), paras 72.
36 Regulatory Bodies, Report of the Health Select Committee (2010-11) HC 1203-i.
37 Council for Healthcare Regulatory Excellence, The Establishment of the Medical
Practitioners: CHRE response to the GMC consultation (2003), para 14.
201