Regulation of Health and Social Care Professionals Consultation

independence of the new Medical Practitioners’ Tribunal Service (see Part 9).
That might suggest that it was rational to allow both appeals, and find practical
solutions to any practical problems.
10.50 On the other hand, the emergence of the Tribunal might mean that this particular
power of the CHRE is now otiose. If the power previously existed to provide
oversight as a substitute for a perceived lack of independence, the
accomplishment of that independence would make it unnecessary. If this view
were taken, then perhaps the system should provide for section 29 to apply to
regulators until such time as the Government was satisfied that a regulator’s
adjudicative system was sufficiently independent to make it unnecessary. At that
time, the Government could by order disapply section 29 and in substitution
provide for a right of appeal by the regulator. The question in this specific case
would then become whether the proposed Medical Practitioners’ Tribunal Service
was sufficiently independent.
10.51 The alternative position is also tenable. It might be that the Council for Healthcare
Regulatory Excellence’s oversight role requires retention of its section 29 power
regardless of the independence of the regulator. The power is concerned not just
with procedural independence, but also with ensuring appropriate outcomes, both
in individual cases and systemically. It might be argued that, it is the CHRE, as
the overseeing body, which is in the right position to assess which cases should
be reviewed by the Court, not the General Medical Council, standing as it does in
these issues as one of the parties to the proceedings. The point could be taken
further – not only does the Council for Healthcare Regulatory Excellence need
section 29, but the existence of a right of appeal by the General Medical Council
inappropriately confuses the lines of accountability and oversight in part provided
by section 29. The CHRE has argued that the proper relationship between
overseer and overseen would be better preserved if the General Medical Council
were to be able to propose that a reference be made under section 29, but not to
formally initiate one on its own account. 38
10.52 We invite views on which of these is the better way forward. In doing so, we
acknowledge that it is likely that the Government will take a determinate position
and legislate in advance of our recommendations being finalised. 39 That again
will have an impact on the balance of advantage.
Question 10-7: Should the CHRE’s power to refer cases to the High Court in
England and Wales, the Court of Session in Scotland and the High Court in
Northern Ireland: (1) be retained and exercised alongside a regulator’s right of
appeal, in cases when the regulator’s adjudication procedure is considered to
be sufficiently independent; or (2) be removed when a regulator’s right of
appeal is granted in such circumstances; or (3) be retained and rights of
appeal should not be granted to regulators, although regulators should have a
power to formally request the CHRE to exercise its power?
38 As above, para 16.
39 The legislation referred to is in relation to the proposals for reform of the General Medical
council’s fitness to practise adjudication process through a pending section 60 order.
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