Other Areas of Law
NHS England: are GPs getting a fair hearing?
GPs may not perform NHS services in England unless they are included in a national list (“the List”) held by NHS England. NHS England has powers to manage admission, suspension and removal from the List.
If a GP’s name is not on the List he/she is prevented from practising. Evidently, therefore, NHS England’s list determinations have very serious ramifications for clinicians. However, the decision making process is treated as an internal proceeding and therefore operates in a similar fashion to disciplinary procedures in the employment context meaning, for example, that GPs are not entitled to be legally represented.
Following Knowsley (R. (on the Application of S) v Knowsley NHS Primary Care Trust  EWHC 26 (Admin)), the Courts have held that the procedural regulations governing list determinations (now the National Health Service (Performers Lists) (England) Regulations 2013, “the Regulations”) should be read in such a way as to comply with Article 6 ECHR.
NHS England List Decision Panels are ill-equipped to carry out the reinterpretation called for by the Courts. The Panels do not commonly include legally-trained members. Moreover, the Panels do not have the benefit of a legal assessor. There have been instances where, refusing to hear legal submissions from lawyers and in circumstances where the GMC has allowed a GP to continue to practise, the clinician has been prevented from working because a Panel has suspended him/her from the List.
Faced with having to interpret the Regulations so that they comply with Article 6 ECHR, in the individual circumstances of the GP, it is not surprising if Panel determinations are procedurally unfair, in some instances. The question that arises is whether this is a problem of significance, warranting legal assistance to be provided to the Panels in all determinations. In light of the serious consequences to clinicians of list determinations, and the difficulty of determining procedural fairness, the issue should be given serious consideration.
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