Revamped GMC revisited  
 
Dr Dermot J Ward

Not long ago I offered to “hold the hand”, just act as a moral support, to an old friend and older colleague - letʼs anonymise him as “Tom” - who was seeking restoration of his name to the GMC Register by what we used call a fitness-to-practise hearing but is now The Medical Practitioner Tribunal Service in England. I made it clear to him I would not be
attending in any material witness capacity.

He had felt unable to afford legal support for thethree day hearing. itself a very expensive venture for him, his truly heroic wife and a driver So, I was a little perturbed when about 5 days prior to the hearing our postman delivered a voluminous file 3-4 inches thick. I admit to a milder heartsink moment. Guiltily I deliberately left it unread until two days before the hearing, to be held not in London but about 300 motoring miles away, when I finally riffled swiftly through the documentation. It was much as I expected: numerous newspaper and journal cuttings, both general and medical, about NHS failings, legal irregularities and the like. All of these were important. Some hugely so. But whereas I shared Tomʼs views, this particular doctorʼs dilemma was my seeing it as largely irrelevant to a Register restoration plea.

The kindling of hope

But just two items in that bundle stood out. One was a support letter to the GMC from a senior MP with a long and well respected reputation. His letter was, I thought, a superbly crafted one. Clearly it was not the almost proforma letter any constituency MP might send in response to a complaint about a local public utility that could be speedily dealt with. In
Tomʼs case, inter alia, the MP queried whether the charge of improper conduct even properly constituted a charge at all. He also posited that the allegation, occurring as was the case, around the time of Shipman had wrongly influenced the readiness with which complaints against doctors were coloured.


The second outstanding item was a decision written by a Dublin Justice in connection with the allegation that resulted in his name being removed from the GMC Register some years earlier. You see, Tom, following his Register erasure in England, needed to earn a crust and came to Southern Ireland to practise. Not long after his arrival his GMC erasure came to the attention of The Irish Medical Council. That Council decided that he could continue in practise pending investigation. The Dublin High Court initially investigated the case, could not find a case to answer but ordered a full Irish Medical Council fitness-to-practise hearing which cleared him completely. My friend considered the reason the Irish Council (hence that Dublin Justiceʼs ruling I mentioned above) found in his favour was because, he believed, the Irish investigation process was simply more thorough. Incidentally, the (Australian) Medical Board of Victoria and New South Wales, decided that the GMC was
wrong. Tom remains on both Irish and Queensland Medical Council Registers. Although no longer in active medical practise, he has wanted to restore his good name in England.

The fool for a lawyer

It was those two documents which drew me ineluctably away from a simple hand-holding support to that of a declared witness on his behalf. The old adage has it that the man who defends himself in court has a fool for a lawyer: in having me as a witness was perhaps the equivalent of having a second-hand fool for a lawyer. I did enquire of the Legal Assessor at one point if the Tribunal (as the GMC fitness-to- practise hearing is now defined) was adversarial rather than inquisitorial and after a slight pause was told it was adversarial. The hearing was scheduled to last three days. I was naive enough to perceive
the two legal officers (men) who visited (together) us (Tom, his wife and me) in the small pokey room allocated to the medical appellant and his/her entourage as at least honourable. I do not recollect their identifiying themselves by name and function but they were clearly legal rather than medical. Later I learned, after the tribunal commenced that the older one was a ʻLegal Assessor”.

He seemed, initially at least, to function as impartial process referee. The other emerged unequivocally shortly thereafter as prosecuting counsel. Whether or not in view of the adversarial process they should have been together with the appellant in the same room before the formal hearing began seems legally questionable if not actually lawyer impropriety. That initial contact was so relaxed and informal I stupidly opined that I could see no reason why the hearing could not be completed in a morning. I mentioned to them the two items that I had found so supportive and only later did I realise how gauche I had been. That second-hand fool again. Neither offered any comment. Matters became steadily more sinister.

Extremely adversarial

From its formal beginning the hearing was tightly and distinctly legally rather than medico-legally managed, especially when I compared it with the only other GMC restoration hearing in which I had participated some years ago also in support of a colleague. On this recent occasion there was a medical chairwoman, a lay person and two doctors on the panel. The legal assessor was quite definitely in umpire charge guiding, interjecting in the proceedings politely of course: the iron fist in the velvet glove. Any hint here of self-regulation was indeed a distant prospect or perhaps more a mirage. No. This was external governance with a vengeance. When I had participated in that GMC fitness-to-practise hearing in London some fifteen years ago it had seemed a wholly proper parallel process: a plea for restoration to the GMC Medical Register following a 5 year period of erasure. Distinctly medico-legally self regulated. It was fair.


What follows about the recent experience is mostly a blur while during which prosecuting counsel monotoned on, reading from a seemingly inexaustable brief from his laptop, purporting to detail the case against the appellant. That monopolised the whole first morning session and half of the afternoon one. So much for my suggesting earlier that the whole hearing could be wrapped up in one morning session. It is so easy to spend OPM (other peoplesʼ money), in this case, doctorsʼ. It became clear to me there was a determination to continue the torturous one-sided diatribe for the full 3 days. Tom, despite his advanced years and poor general health at times managed to land a blow considering the forces ranged against him. But the depths to which this ʻlegal processʻ sank will become clearer.

Ritual slaughtering

I switched off when I perceived the unremitting unfairness of the proceedings and slipped into mainly hand-holding mode, and some outline planning an outline when called upon to give evidence, but, prepared to tune in again when finally I was called on the 3rd and last day. I was invited to take the Oath and give evidence. I had prepared a lead-in, explaining my perception of Tom as a doctor, respected by colleagues and indeed his wider community: his continued Irish Medical Council registration over a decade plus and his unblemished practise record in Ireland (and Australia). My plan was then to ask that I be allowed to read completely the MPʼs support testimony. It was one and a half A4 typed pages. Three minutes? And following that to be allowed do likewise with the Dublin High Court Justiceʼs typed decision. Five minutes? Foolishly perhaps I considered my pursuing that path must surely tell positively on behalf of my colleague.


Enter, the fool

Having taken the Oath I was immediately wrong-footed by the Legal Assessor who suggested that there were two items that I specially wanted the panel to hear. Thus apparently facilitating me he had directed me away from my lead-in. These were of course the 2 items I had made them aware of on that first meeting before the tribunalʼs formal day one commencement. I, the second-hand fool lawyer, took the bait, albeit annoyed at its tainting my prepared approach, and declared my wish to read the MPʼs letter in full only to be told by the Assessor that I could not do so; that I could mention a few abstractions from
the letter if I wished but not more. I cobbled something together, I felt, of significantly lesser impact but at least I made it clear I honoured Tom as a truly noble (sic) man. (I have known him about 20 years). I then moved on to the Dublin Justiceʼs decision and requested that I be allowed to read it in full only to be told also for the first time that it was inadmissible. Now I was well aware that the Dublin Justice functioned in another jurisdiction. Equally, I knew there was considerable respect and mutuality for obvious historic reasons between Irish and British courts and lawyers.

What was so sinister about this episode was that even before the court hearing began and when both parties met in that small ante room those two lawyers had taken careful note of the two items I intended to raise. Had there been a shred of impartial fairness in their minds, the Assessor's at least, would surely, at some point over the following few days have informed us of the intention to disallow consideration of the two most telling submissions. The adversarial system relies on legal representation for  both parties. The medical chairwoman appeared as a mere cipher: she could have insisted that in a three day hearing, the request by the only pro-appellant witness for a mere ten minutes of the tribunal's time, as a minimum, should be heard. Instead her behaviour as a medical chairperson in a medical tribunal was cruel, unjust and shameful.


When the tribunal had declared against Tom's restoration to the Register. The chairwoman announced the hearing was finished. At that point I stood up and said I wished to make a statement. Predictably, perhaps, she said I couldn't; that the hearing was finished and that the microphones were switched off. But I had had too much and merely said I would make a statement anyway. I was brief and said “I consider this hearing was most unfair”....”that the whole process is significantly inferior to the one it has replaced”. How feeble that sounded. Yet it seemed a small but worthwhile comment.

Epilogue

Our civilisation in these Islands depends on respect for our democratic system and the judiciary, our system of justice that has evolved over time: Roman, Christian, Magna Carta, on natural justice, rules of evidence and due process. Without this we have nothing. Even at its best it is beset by human frailty. No court guaranties justice because of this: only the possibility of justice. Otherwise, there would be need for courts of appeal. We gathered our papers together and turned to the back of the courtroom where Tom's wife was and had insisted on being present throughout the hearing: a petite older lady with
a razor-sharp mind equalled only by the strength and loyalty inherent in her feminine frailty.

I do not think that what I observed that week represents the best we can we do. For me it is a nadir. There is definite grounds for hope (perhaps too late for the UK). There is still a vigour amongst perhaps somewhat younger Irish medical practitioners. I believe there is a shape emerging, a case which can responsibly restore a degree of self-regulation which properly protects patients without destroying doctors. For a multiplicity of reasons in England I am less sanguine about our profession's present situation, let alone its future.  Be in no doubt that you cannot demean our profession without seriously damaging patient care.