A guide to this year’s changes at the MPTS
The new year in 2016 brought with it the introduction of a number of changes at the Medical Practitioners Tribunal Service (MPTS). The principle changes include:
- A change in the nomenclature of panels
- The introduction of legally qualified chairs sitting without legal assessors
- The introduction of the GMC’s power to appeal fitness to practise decisions
- The introduction of the powers to draw adverse inferences, exclude evidence and award costs.
These are in the process of bedding in and in many respects it is simply too early to tell whether the changes are more of style than substance. However, as the picture unfolds we discuss each change and some potential implications in practice here.
1. Change in panels’ names
The most obvious change, but possibly the least significant in practical effect, is the rebranding of Interim Orders Panels as Interim Orders Tribunals and of Fitness to Practise Panels as Medical Practitioners’ Tribunals. The change in language is intended to reflect the operational independence of the MPTS from the GMC. That independence has been strengthened by the new regime, which involves the MPTS reporting directly to Parliament.
2. Legally qualified chairs
Those familiar with the MPTS will be struck by the vacant chair in the hearing room in those cases where the Tribunal’s chair is legally qualified and the legal assessor has consequently been dispensed with.
Whilst that move should see some costs savings for the Tribunal, there is an anxiety amongst defence practitioners that the absence of a legal assessor may adversely affect hearings in certain cases, not least due to the removal of valuable behind the scenes input which can assist parties in resolving contentious matters without the need for the Tribunal to address them formally. Early experience suggests that the facility to convene Tribunals without a legal assessor is being warmly embraced at the interim orders stage but explored more cautiously in the context of fitness to practise review hearings.
3. The GMC’s power to appeal
The GMC now has a power to appeal decisions made by the MPTS, meaning that practitioners could potentially face appeals brought by both the Professional Standards Authority and the General Medical Council.
This carries risk of favourable decisions being overturned, but also exposure to the adverse costs risk of multiparty litigation. The power of appeal has been used relatively sparingly by the Professional Standards Authority and it remains to be seen whether the prosecutor’s approach will differ.
4. Introduction of new powers
The power to draw adverse inferences
The MPTS guidance indicates that the power to draw adverse inferences will be considered when a party has “failed to provide evidence leaving the MPT unable to assess its quality and/or determine what it means in the context of the case as a whole.”
The power will only be exercised when the Tribunal has considered all of the circumstances and they will be invited to consider whether any failure was ill-motivated or made in bad faith. The guidance indicates that an inference that a party has acted in bad faith should only be drawn where “it is the only reasonable inference to be drawn from the failure and there can be no other reasonable explanation.”
Tribunals are reminded that the power to draw an adverse inference does not reverse the burden of proof.
The power to exclude evidence
The MPTS guidance notes that the exclusion of evidence is “a draconian step which should only be taken where absolutely necessary.” Tribunals are advised that they should always consider whether there is “any other mechanism which would allow the hearing to proceed fairly, before refusing to admit evidence.”
It is expected that the power should be exercised rarely. The power is intended to protect a party from unfairness by the manipulation of the hearing process.
The power to award costs
A power to award costs has existed in relation to Registration Appeals Panels for many years but has rarely, if ever, been exercised.
From a defence perspective, the new power raises the spectre of satellite litigation in relation to costs and close attention will be paid to the way in which this new power is used in practice. The MPTS guidance emphasises that the power is intended to encourage parties to comply with the rules and case management directions in order to improve efficiency.
The power can be exercised where there has been a failure to comply with a rule or a case management direction and the relevant party has behaved unreasonably.
For more information and guidance, please contact:
T: 020 7227 6722
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.