SMPs Have No GMC Immunity

…the moment you declare a set of ideas to be immune from criticism, satire, derision, or contempt, freedom of thought becomes impossible.”
[Defend the right to be offended (openDemocracy, 7 February 2005)]”
― Salman Rushdie

Pop quiz:  Have you heard of  General Medical Council v Meadow [2006] EWCA Civ 1390.  It was a judgement handed down by the Court of Appeal on 26 October 2006.

No?  Doesn’t ring a bell?  You are not alone. We’ve read the majority of literature published on selected medical practitioners (SMPs) and the relationship they have with the Police Injury Benefit Regulations but had never come across this case law either.

General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006)

You are here: BAILII Databases England and Wales Court of Appeal (Civil Division) Decisions General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1390.html Cite as: [2006] EWCA Civ 1390, [2007] ICR 701, [2007] QB 462, [2007] 2 WLR 286, [2007] LS Law Medical 1, [2007] 1 FLR 1398, [2006] 3 FCR 447, [2007] 1 All ER 1, 92 BMLR 51, (2006) 92 BMLR 51, [2007] Fam Law 214, [2007] 1 QB 462, [2006] 44 EG 196

We have read, however, that Nicholas Wirz, solicitor for Northumbria police, thinks the GMC code of ethics and GMC guidelines are irrelevant to the function of a SMP.  He essentially has been advising that SMPS can behave badly towards IOD pensioners with no consequences from the GMC.

Remember, Wirz is the chap who is busy advising Staffordshire and Nottinghamshire how Regulation 33 can be stretched as thin as a cheapest, gossamer see-through pair of budget nylon tights. The visible result of this self-appointed quasi-guru’s meddling is that disabled former officers are seeing their injury pensions unlawfully reduced from band four to band one. The not so visible result is traumatised, bullied, frightened disabled former officers, many of whom are vulnerable due to mental health problems, and who feel they have no way of challenging the appalling behaviour of some SMPs.

Wirz says in his training material to SMPs

The GMC believes it has jurisdiction over medical practitioners performing a statutory function under the Regulations. Officers/Pensioners commonly make complaints to the GMC against both SMPs and those other medical practitioners the SMP instructs to assist with and inform the SMP process.Para 5.1 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

And then he continues to assert that this belief is mistaken:

The SMP takes their authority from the statute as interpreted by the courts. Does the GMC have any locus in these circumstances? In other scenarios where medical practitioners perform a judicial function, taking their authority from the relevant enabling legislation/common law, the GMC has no jurisdiction. An example would be the role of CoronerPara 5.2 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

So where does this proclamation by Wirz that the GMC has no jurisdiction leave us? In the training material referred to above, Wirz makes no reference at all to General Medical Council v Meadow. Why? We can not believe he is unaware of the case, nor fully cognisant of its implications for SMPs. Asking as we are, in this rhetorical way, it seems the judgement has some of the characteristics that Wirz would like to ignore. So he has done just that – he does not mention it. Wirz’s modus operandi is to present only material which appears to support his peculiar, warped, biased and objective-driven view of the Regulations.

This case concerned Professor Sir Roy Meadow, the infamous paediatrician, and his evidence in the case of Sally Clark, who became the victim of a miscarriage of justice when she was found guilty of the murder of her two elder sons.

The Fitness to Practise Panel (FTPP) of the GMC found serious professional misconduct to be proved, and ordered Professor Meadow’s name to be erased from the register. Professor Meadow appealed both against the finding of serious professional misconduct and the sanction of erasure.

The GMC had sought to protect the public by removing Meadow’s registration. This action was in response to his serious professional misconduct, or impaired fitness to practice, which was evidenced by testimony given by him in a criminal court. The doctor’s appeal was based on a claim that the evidence given by him in court was privileged. Immunity is a common law concept. It is given to witnesses to encourage them to give evidence, and to avoid multiplicity of actions.

Meadow won the appeal on the argument that the purpose of the GMC’s FTP (fitness to practice) proceedings is not there to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those doctors who have shown they are not fit to practise.

In other words the FTPP should look forward not back, and the FTPP got this wrong, so the GMC appeal failed.

The important part of the ruling is that the court did however rule that the GMC did indeed have the jurisdiction it claimed. There is no blanket immunity permissible for doctors to never be referred to the GMC for misconduct or impairment to practice. It depends on the type of misconduct or impairment.

Master of the Rolls Sir Anthony Clarke covered the GMC’s statutory function, powers and duties of the GMC as governed by the Medical Act 1983;

1. It is I think inconceivable that the draftsman of any of these provisions could have thought that a person against whom there was a case to answer that he was guilty of serious professional misconduct or, now, that his fitness to practise was impaired, would or might be entitled to an immunity of the kind suggested here. Such immunity would, to my mind, be inconsistent or potentially inconsistent with the principle that only those who are fit to practise should be permitted to do so.

So on the matter of granting an immunity which had not, up to 2006 been explicitly recognised, the judge considered that the immunity did not need to be absolute.

There was no reason why the judge before whom an expert gave evidence (or the Court of Appeal where appropriate) should not refer his conduct to the relevant disciplinary body if satisfied that his conduct had fallen so far below what was expected of him as to merit disciplinary action.

Master of the Rolls Sir Anthony Clarke said in his judgement,

However, I should say at once that in this regard I accept the submission made by Mr Henderson on behalf of the GMC. It is that, although the need for fearlessness and the avoidance of a multiplicity of actions has been held to outweigh the private interest in civil redress, hence the immunity from civil suit, those public policy benefits do not and cannot (or at least should not) override the public interest in the protection of the public’s health and safety enshrined in the GMC’s statutory duty to bring FTP proceedings where a registered medical practitioner’s fitness to practise is impaired. A similar point can be made in the case of other professions and occupations, with more or less force depending upon the particular circumstances.

Meadow seemingly won the appeal on a technicality of the failings of the FTPP  – not because the GMC’s FTPP did not have jurisdiction.

All the doctors brainwashed by Nicholas Wirz via his ramblings presented at meetings of the NWEF and at the College of Policing should realise that the equivalent immunity from professional regulatory investigation or proceedings, which Wirz tells those gullible enough to listen to him applies to SMPs, has been held by the Court of Appeal to be contrary to the public interest in the case of expert witnesses.

Nowadays, the GMC has the Medical Practitioners Tribunal Service (MPTS).  Whether or not the GMC case examiners or the investigation committee are satisfied that there is a realistic prospect of establishing that the doctor’s fitness to practise is impaired, and so refers complaints to the MPTS,  is down to the facts of the matter being alleged.  Perhaps the conduct does or doesn’t touch on fitness to practice issues.  Maybe the matter concerns a breach of GMC guidance such as failing to treat the former officer as a patient or to ignore the requirements to disclose medical reports BEFORE disclosure to the force.  Guidance such as this  Confidentiality & Disclosure GMC.

But the take-home here is that Wirz is wrong yet again.  How many vulnerable former officers have not pursued complaints because he has told them the SMP is out of bounds?  Perhaps even Wirz knew about the GMC v Meadows judgement and wanted to bamboozle those about the threshold level required for the GMC to act. Who knows.  We know that there is a world of difference between “no jurisdiction” and  the threshold of fitness to practice to ensure patient safety.

In following this Court of Appeal, there is no exception. The GMC does not aim to resolve individual complaints or punish doctors for past mistakes, but rather to take action where needed in order to protect patients or maintain the public’s confidence in the medical profession.

You do know now, though, that any SMP who claims immunity from GMC ethics or guidelines, or claims that you are not his or her patient needs to read the above Court of Appeal judgement.

If you feel a SMP has harmed your health by his behaviour, or by his failure to put your health first, or by making unreasonable demands causing distress, such as insisting you travel a distance to see him or her, provide medical records from birth, or threaten you with reduction on your injury pension if you do not comply – or any other behaviour or omission which adversely impacts on your health, then complain to the GMC.

You are a ‘patient’ in the eyes of the GMC, and you have the right to be protected from doctors who are unfit to practice.