The radical overhaul of the General Medical Council’s system for dealing with issues of ‘fitness to practise’ has failed to address the key criticisms of the previous system.
Critically analyze this statement.
IntroductionThe General Medical Council’s new system for dealing with issues of “fitness to practice” came into effect in November 1, 2004. The “old system” received many criticisms. The new system is analyzed to see whether these changes amount to a radical overhaul of the old system, and whether these changes address those key criticisms. The GMC and fitness to practice proceedingsDoctors needed to be regulated. A doctor can affect his patient in many ways, from simply advising on his life-style, to diagnosing that his patient is sick and unfit for work, to performing mutilating surgery to his body for the treatment of illness. A patient needs to trust his doctor both in his skill professionally and that he would act ethically. “Fitness to practice” (FTP) procedures are necessary to identify doctors who are for some reasons not fit to practice. They would pose danger to their patients, and actions need to be taken to stop them from practicing until they are fit to do so.
The General Medical Council (GMC) is a regulator of professional standards by the medical profession formed under the Medical Act 1858. The Merrison Committee recommended in its report in 1975 that the GMC had to "assure itself that those admitted to the register are competent and to remove those practitioners unfit to practise. The maintenance of a register of the competent is fundamental to the regulation of a profession." One of GMC’s major functions as set out in the Medical Act 1983 is to maintain a register of qualified doctors. It would be illegal for a doctor to practice if his name is not on the register. The GMC is the only statutory body which has the power to suspend or remove a doctor’s name from the register. With this power and the fitness to practice procedures, the GMC can set standards for the profession, decide which doctor is not fit to practice and stop him from practicing.
The fundamental purpose of the FTP procedures is to promote and safeguard public interest. This includes individual patient protection, maintenance of public confidence in the profession and declaring and upholding proper standards of conduct. Basic principles to ensure the fundamental purpose are suggested in the Fifth Report of the Shipman Inquiry. Firstly, everything that the GMC does must be capable of scrutiny and be transparent. Work must be thorough, careful and high quality and procedures must be followed. Each process must be undertaken by persons who are suitably qualified and properly trained to carry it out. The GMC and the procedures need to be properly resourced for these purposes. Secondly, decisions should be made in a consistent, transparent manner. Thirdly, the procedures should comply with the Human Rights Act 1988. There needs to be a separation of the investigation and adjudication functions. Fourthly, there is a need to abolish the separate procedures for conduct, health and performance and to create a unified set of procedures for all types of case.
The old fitness to practice systemThe old procedures looked into four areas which would affect a doctor’s fitness to practice: criminal offences , serious professional misconduct (SPM) , health and serious deficient professional performance . There were three separate types of procedures: conduct procedures, health procedures and performance procedures. Each procedure had its own set of statutory Rules.Complaints would first be filtered by GMC staff, those survived the filter would be passed to a screener. If he considered that the case should be closed, another lay screener needed to agree also. Liable cases would be passed to different procedures accordingly.
Conduct proceduresCases involving SPM were passed to the Preliminary Proceedings Committee (PPC). The adjudication stage was performed by the Professional Conduct Committee (PCC). The complainant could seek judicial review for discontent of decisions. The doctor could appeal to the High Court. The Council for the Regulation of Healthcare Professionals (CRHP/CHRE) , which was formed in April 2003, also had the power to refer a relevant decision to the High Court .
Health proceduresThere were four stages: Stage 1 (initial assessment) by a health screener where a doctor could cooperate and agree to take necessary preventive steps; Stage 2 (medical examination) by at least two examiners where a doctor was decided whether he was able to practice. He could agree on restrictions on his practice; Stage 3 (medical supervision) by a supervising doctor who would report on the progress of the doctor in question; Stage 4 (Health Committee) where a doctor would be referred if he did not cooperate with examination, did not follow the recommendations or deteriorated. Appeal could be made to the High court.
Performance proceduresA complaint needed to pass a screener first. If the screener thought that the complaint should not progress, a lay screener needed to agree with the decision. Otherwise the doctor would be invited to undergo a performance assessment. If the doctor did not agree to a performance assessment, the case would be passed to the Assessment Referral Committee. If a performance assessment was decided, a case coordinator would appoint performance assessors to form the Assessment Panel. Performance Assessment composed of two phases. Phase I was peer review. Failing phase I would lead to the competence tests in Phase II. If the doctor failed to comply with the statement of requirements complied by the case coordinator, or the case coordinator considered necessary for public protection, the case would be referred to the Committee on Professional Performance.
The key criticisms of the old systemOne of the major criticisms of the old system was that the culture and attitude in GMC aimed at being fair to doctors instead of patient protection. The disciplinary function was reactive and complaints-triggered, as highlighted in Krippendori v GMC where it was decided that the FTP procedures extended only to conduct which was the subject of a complaint and no independent review of the doctor’s conduct could be performed. The Inquiry summarizes criticisms to the GMC in the 1980s : “One might summarize those criticisms by saying that the GMC was ‘doctor-centered’. It appeared to assume that all doctors were good, competent and conscientious until proved otherwise. It would deal with the profession’s ‘bad apples’ for the sake of the profession. It would do so in its own way and did not welcome scrutiny. Its procedures were designed to be fair to doctors and to ensure that no doctor would lose his/her right to practice without very good cause. It did not focus on the reasonable expectations of the public and it did not see itself as having a duty to ensure that all members of the medical profession were willing and able to provide a proper professional service.”Outcries for the failure to protect patients became more intense in the 1990s. In the Bristol case the GMC admitted errors in registering Richard Neale, the paediatric cardiac surgeon, who had been erased from the register in Canada in the 1980s and proved to be incompetent in his UK practice . Another case concerned Harold Shipman, a general practitioner who had murdered over 200 of his patients. Shipman had a history of substance abuse and he killed his patients by overdosing pethedine. He had been reported to the GMC for alleged misconduct in three occasions, but was allowed to practice without restrictions and there was no monitoring of his progress. The public considered the GMC failed in the respect of patient protection. The Shipman Inquiry looks into this incident. Leading Counsel for the GMC admitted in the Inquiry’s oral hearing that the FTP procedures had failed in many respects to meet the reasonable expectations of patients and the public . There was lack of transparency of the system. Operational problems included unacceptable delay in dealing with complaints and concerns about doctors, failure to investigate complaints adequately, failure to follow up complaints that had been referred to other bodies for investigation and cases which should not have been closed had been closed. The quality of decision making was also admitted to be far from satisfactory. There had been lack of consistency and the quality of decisions variable. Approach had been idiosyncratic rather than systematic and there was unacceptable disparity between outcomes of cases. There was absence of satisfactorily planned and structured training for staff and panelists. Panels and committees failed to give reasons for the decision in the past. In recent times, reasons given were not always what they should be. There was insufficient audit of GMC decisions and the few audits had been more enumerative than qualitative.Procedures were criticised that they failed to serve the main purpose of patient protection. Separation of the procedures into discrete categories produced the “silo effect”. A case could not be handled within more than one set of procedures at any one time. Complicated cases might not be tackled thoroughly.Concerning the Conduct procedures, the three screening processes were held in private. Only 5% of the complaints reached the PCC. At least 65% were closed at initial sift by GMC staff. This initial sift by administrative staff with no medical training offered not enough protection to patients. Also they would not accept cases unless complainants had pursued local complaints procedures to their conclusion. They did not investigate until complaints reached PCC, and they would not investigate into doctors’ background information.In the screening stage, statutory test for screeners was imprecise and was reversed . Wide discretion by screeners produces inconsistency. Cases that warranted action were filtered out. The meaning of SPM was not defined and this caused difficulty in recognizing SPM. In the PPC, the test applied again was imprecise. There was wide discretion same as screeners. Professor Isobel Allen pointed out that there was a propensity for panel to deciding whether the allegation amount to SPM, rather than to limit itself to deciding whether the case ought to proceed to the PCC. There were wrong decisions because of desire to be fair to doctors. And the PSI Paper 2003 showed there was inconsistency in dealing with conviction cases.In the PCC, lack of standard leaded to inconsistent decisions. Sir Donald Irvine agreed that there were much dispute about what amount to SPM. In 1999, an Internal Working Group found that there were instances of inappropriate sanction, sanctions inconsistent with previous decisions and failure of panels to give detailed reasons for their decision.
For the Health procedures, as in Shipman’s case, loopholes were found where patient protection was not ensured. Doctors who had been abusing drugs were referred more or less automatically into the voluntary health procedures. The approach towards doctors who were dependent on drugs was rehabilitative. Doctors were treated as victims of drug addiction. There was not enough investigation or assessment on the doctor.
For Performance procedures, performance assessment was expensive and time-consuming. The standards of performance imposed by the Committee on Professional Performance were very low and in fact lower than that of the second phase of the performance assessment. Doctors under voluntary undertakings or being imposed conditions upon their registration were not supervised well enough and were sometimes allowed to resume unrestricted practice without having produced adequate evidence of improvement.
Another major criticism of the old system was that both the investigation function and the adjudication function were preformed by the GMC. This was in contradiction to the Human Rights Act 1998 which entitles a person to a fair and public hearing by an independent and impartial tribunal.
The GMC 2001 Consultation Paper came to similar conclusions and that a new system should be designed.
The radical overhaul of the system: the new systemThe new procedures involve a new unified approach, the “impairment of fitness to practice”, and abolish the three separate procedures. Complaints will be considered by GMC staff and refer to a medical and a lay case examiner if the case falls with s35C (2) of the Medical Act 1983 . Case examiners will investigate the allegation and decide whether to refer to a Fitness to Practice (FTP) Panel. Case will be referred to the Investigation Committee when the two case examiners disagree or when an oral hearing is needed to determine whether a warning should be issued. These compose the investigation stage. The President of the GMC can review a decision of the investigation stage.The adjudication stage is performed by the FTP Panel. The new wection 35D of the 1983 Act provides the powers for a FTP panel to restrict or remove a doctor’s registration if it finds that his fitness to practice is impaired. A doctor can appeal a FTP Panel decision to the High Court. The CRHP/CHRE can refer a decision by the Panel to the High Court. The complainant can apply for judicial review.The Interim Orders Panel replaces the Interim Orders Committee to deal with cases where it is appropriate to impose an interim order restricting a doctor’s right to practice pending investigation and determination of his case.
Can it address the criticisms of the old systemThe Inquiry gives an overall negative comment on the new system: “In 2001, the GMC set out its vision for the new FTP procedures. They were firmly based on the ideal of instituting procedures that would provide proper protection for patients without sacrificing the need to be fair to doctors. My general conclusion has been that, in implementing the new procedures, the GMC has to some extent lost sight of its earlier vision. In developing the new procedures, there has been a good deal of ‘chopping and changing’. It has been difficult to recognize the principles underlying many of the changes.”
One important pointer to the determination of patient protection is the culture and attitude of the GMC. The Inquiry states that “It is axiomatic that the best indicator of future attitude and performance is past atitude and performance.” Many aspects have shown that there is no major change in the culture and attitude of being “doctor-centered”. One such aspect is the lack of transparency in the development of the new procedures. Meetings were held in private and there was no means for the public to take part in modeling the new procedures. Another aspect is the failure to separate the function of investigation and adjudication, despite the gesture of consultation and determination to comply with the Human Rights Act 1998. Also, procedures are designed to err on the side of being fair to doctors than to protect patients. Procedural inadequacies can be amended and corrected, but this needs to be backed by a real change of attitude towards patient protection before the GMC can take initiation in perfecting the new procedures.
Procedural analysisInadequacy and changes to the worseThere is lack of transparency in the process. Internal rules are not made known to the public. Clear statistical information is not provided by the GMC, such as the way reports of convictions are dealt with. This hinders scrutinizing of the processes.
Investigation and adjudication functions are not seperated. After the consultation paper in 2001, GMC has chosen to retain both the investigation and the adjudication function, only that the two functions are intended to be carried out by different personnel. The FTP panel in the adjudication stage comprises non-members of the GMC. However, they are selected, trained and appraised by the GMC. Thus the panelists will not be at all independent of the GMC. Influence by GMC on the penals is also evidenced by its intention to inform the doctor of the desired outcome of a case in advance of a hearing. This is commented as “to tie the panel’s hands”. The Inquiry recommends that hiving off the adjudication function would be a better option. Otherwise, FTP panelists are recommended to be selected, trained and appraised by a body independent of the GMC . Full time panelists are recommended and also a full-time legally qualified chairman.
The term “impairment of fitness to practice” is non-specific. Although s35C of the Medical Act 1983 provides some guidance, it does not define the term or set any standard. The previous problem of defining and recognizing SPM will be perpetuated and even increased. There is a need for a test which the public understands and by which the courts can judge whether a decision was lawful in the sense of cimplying with the test. There is also a “lacuna” identified in S35c concerning impairment of FTP . A further route is suggested by the Inquiry for better patient protection by identifying potential dangerous doctors: deficient clinical practice. This would cover those cases which involve one or two incidents of negligence or poor clinical practice which do not amount to misconduct and do not trigger a performance assessment. Guidance issued for case examiners and panelists also does not help them to decide where to draw the line of what amount to impairment of fitness to practice. They are thus left to apply their own personal standards. At the investigation stage, no provision states the test for the Investigation Committee to decide “whether it should be considered by a FTP panel.” The test used by the GMC is “whether there is a realistic prospect of establishing that the doctor’s fitness to practice is impaired to a degree justifying action on registration.” This test is criticized for focusing on issue of sanction rather than effects of the doctor’s action on patients and it involves value judgment. The threshold is also too high for it considers a realistic prospect. A two-stage test is suggested in the Inquiry which incorporates patient protection and objective criteria “to ensure that all those cases that ought to proceed do in fact proceed to a FTP panel.” Similar problems are found of the adjudication test. The statutory test is whether or not the doctor’s fitness to practice is impaired. This requires a value judgment that is not underpinned by any objective criteria . Problem of screening out potential cases still exist. A two stage test is also suggested in the Inquiry. Power to direct investigation, performance assessment and health assessment at the investigation stage lies solely with the Registrar, which in practice means the GMC staff, who is not medically trained. After assessment, there is no provision that the Registrar should send a copy of the assessment report to the doctor’s employer or primary care organizations. Communication with the employer is not ensured. The Investigation Committee undertakes both casework function and governance functions . Self audit is not acceptable.
Shortfalls are also found in the disposal of liable cases. There are no clear criteria for the sending of letters of advice by the case examiner or Investigation Committee. There is a danger that this procedure will be adopted in cases which should be dealt with more severely. The proposals to issue warnings at the investigation stage for a summary oral hearing should be replaced by a full hearing under the FTP panel. The November 2004 Rules permit a decision to cancel a hearing to be made if evidence becomes available which suggests that a doctor’s fitness is not impaired or if it appears that for some other reason, the hearing before the Panel should not be held. These lack transparency and are open to abuse. To make things worse, cases closed at this stage would not be revived.For voluntary undertakings in cases with health or performance element, responsibility for the operation of many aspects is removed from case examiners or medically qualified performance case coordinators to GMC staffs.
For the adjudication stage, there is no clear mentioning of the standard of proof for the FTP procedures. Application of different standards of proof may cause difficulty. The guidance to the 2004 Rules suggested the criminal standard of proof to be used for finding of facts. The Inquiry prefers the civil standard of proof as the GMC’s primary function is to exercise a protective jurisdiction and not a punitive one. There are loopholes at the FTP Panels where problematic doctors might be left under-investigated. There is no provision to take the doctor’s FTP history into account. There is no provision to ensure searching examination of the circumstances underlying drug abuse cases and how the drug abuse began. By rule 17 (5)(b), on receipt of a health or performance assessment report ordered by the FTP panel, the panel is empowered to send the case back to the investigation stage for case examiners to consider whether the doctor can be dealt with by voluntary undertakings. A new provision, rule 17(2) (m), permits a FTP panel to take into account written undertakings by the doctor which the FTP panel considered to be sufficient to protect patients and public interest. However, there is no provision within the Rules for supervision of the doctor to ensure compliance with the undertakings and for dealing with a breach. This might cause the panel to take this into consideration before deciding whether there is impairment of fitness to practice and thus causes “fudging” of these important issues.
Thorough follow-up of cases is not ensured. There is no provision for monitoring and supervision of doctors whose registrations are subjected to conditions imposed by a FTP panel, or those given voluntary undertakings. This is a change to the worse. There is no secure mechanism to identify breaching of conditions imposed and actions cannot be taken. There is no provision that a review hearing be mandatory when a period of suspension of registration or undertaking is imposed. If there is such review hearing, it is conducted by the Registrar and not the case examiners. For consideration of restoration to the register after the period of suspension, it is the GMC staff’s responsibility instead of that of case examiners. The staffs are not medically trained and thus not in the best position to understand the nature of the cases and ensure patient protection.
Good changesThere are some changes which are welcome by the Inquiry. One is the amalgamation of the old conduct, health and performance procedures into one set of FTP procedures. Allegations of different types against the same doctor will be capable of being heard at the same time.
The preliminary stages are simplified, and GMC will not close allegations made by private individuals just because the local complaints procedures have not been exhausted. Also GMC is willing to make enquiries of employers and primary care organizations before deciding whether a case should be rejected at an initial stage. Cases will be disclosed to employers when they survive the initial sift. This enhances communication and transparency.
For the investigation stages, better investigations at an early stage are done by investigators with advice from in-house lawyers and they can order a medical examination or performance assessment. Indicative Sanctions Guidance has been published which is helpful to guide appropriate sanctions for different cases. A review of investigation stage decisions is introduced, though it would be better if the review is not carried out by the President of the GMC as proposed, but by an independent external commissioner.
For the adjudication stagesLegally qualified case managers will conduct pre-hearing case management and makes hearing more efficient. The FTP panel has the power to order a health or performance assessment before decision. Rule 17 (4). Investigation would be more thorough.
ConclusionThe overhaul of the GMC’s system to deal with “fitness to practice” issues is by no means radical. Standards and criteria for “impairment of fitness to practice” are not clear. The is no satisfactory seperation of investigation and adjudication functions. The procedures lack transparency and lack mechanisms for audit of processes and outcomes. Although there are a few good changes identified, the new procedures fail to address the key criticisms of the previous system. The main concern is not enough patient protection. Central to the criticisms is that there is no clear evidence the GMC has changed its culture and attitude from doctor-centred to patient protection. We have to wait and see whether the GMC would adopt the recommendations from the Shipman Inquiry to “overhaul” the new system.
3996 wordsBy Cheng Chi Man
Reference
Statutes 1. Health and Social Policy, University of Westminster Policy Studies Institute Paper 20032. Human Rights Act 19883. Medical Act 19584. Medical Act 19835. National Health Service Reform and Healthcare professions Act 20026. The National Health Service (Complaints) Regulations 2004, Statutory Instrument 2004 No. 17687. Professional Conduct Rules 1988
Cases 1. Frippendori v GMC [2001] Lloyd's Rep. Med. 9
Articles 1. Committee of Inquiry into the Regulation of the Medical Profession. Report. London: HMSO, 1975. (Cmnd 6018; Merrison Committee report.) 2. The Bristol Royal Infirmary Inquiry Report3. GMC 2001 Consultation Paper “Acting fairly to protect patients: reform of the GMC’s fitness to practice procedures”4. Self-Regulation and Paragons of Virtue: The Case of ‘Fitness to Practice’, Paula De Prez, Med Law Rev 2002.10(28)5. Fifth Report, Shipman Inquiry: “Safeguarding Patients: Lessons from the Past- Proposals for the Future”
Critically analyze this statement.
IntroductionThe General Medical Council’s new system for dealing with issues of “fitness to practice” came into effect in November 1, 2004. The “old system” received many criticisms. The new system is analyzed to see whether these changes amount to a radical overhaul of the old system, and whether these changes address those key criticisms. The GMC and fitness to practice proceedingsDoctors needed to be regulated. A doctor can affect his patient in many ways, from simply advising on his life-style, to diagnosing that his patient is sick and unfit for work, to performing mutilating surgery to his body for the treatment of illness. A patient needs to trust his doctor both in his skill professionally and that he would act ethically. “Fitness to practice” (FTP) procedures are necessary to identify doctors who are for some reasons not fit to practice. They would pose danger to their patients, and actions need to be taken to stop them from practicing until they are fit to do so.
The General Medical Council (GMC) is a regulator of professional standards by the medical profession formed under the Medical Act 1858. The Merrison Committee recommended in its report in 1975 that the GMC had to "assure itself that those admitted to the register are competent and to remove those practitioners unfit to practise. The maintenance of a register of the competent is fundamental to the regulation of a profession." One of GMC’s major functions as set out in the Medical Act 1983 is to maintain a register of qualified doctors. It would be illegal for a doctor to practice if his name is not on the register. The GMC is the only statutory body which has the power to suspend or remove a doctor’s name from the register. With this power and the fitness to practice procedures, the GMC can set standards for the profession, decide which doctor is not fit to practice and stop him from practicing.
The fundamental purpose of the FTP procedures is to promote and safeguard public interest. This includes individual patient protection, maintenance of public confidence in the profession and declaring and upholding proper standards of conduct. Basic principles to ensure the fundamental purpose are suggested in the Fifth Report of the Shipman Inquiry. Firstly, everything that the GMC does must be capable of scrutiny and be transparent. Work must be thorough, careful and high quality and procedures must be followed. Each process must be undertaken by persons who are suitably qualified and properly trained to carry it out. The GMC and the procedures need to be properly resourced for these purposes. Secondly, decisions should be made in a consistent, transparent manner. Thirdly, the procedures should comply with the Human Rights Act 1988. There needs to be a separation of the investigation and adjudication functions. Fourthly, there is a need to abolish the separate procedures for conduct, health and performance and to create a unified set of procedures for all types of case.
The old fitness to practice systemThe old procedures looked into four areas which would affect a doctor’s fitness to practice: criminal offences , serious professional misconduct (SPM) , health and serious deficient professional performance . There were three separate types of procedures: conduct procedures, health procedures and performance procedures. Each procedure had its own set of statutory Rules.Complaints would first be filtered by GMC staff, those survived the filter would be passed to a screener. If he considered that the case should be closed, another lay screener needed to agree also. Liable cases would be passed to different procedures accordingly.
Conduct proceduresCases involving SPM were passed to the Preliminary Proceedings Committee (PPC). The adjudication stage was performed by the Professional Conduct Committee (PCC). The complainant could seek judicial review for discontent of decisions. The doctor could appeal to the High Court. The Council for the Regulation of Healthcare Professionals (CRHP/CHRE) , which was formed in April 2003, also had the power to refer a relevant decision to the High Court .
Health proceduresThere were four stages: Stage 1 (initial assessment) by a health screener where a doctor could cooperate and agree to take necessary preventive steps; Stage 2 (medical examination) by at least two examiners where a doctor was decided whether he was able to practice. He could agree on restrictions on his practice; Stage 3 (medical supervision) by a supervising doctor who would report on the progress of the doctor in question; Stage 4 (Health Committee) where a doctor would be referred if he did not cooperate with examination, did not follow the recommendations or deteriorated. Appeal could be made to the High court.
Performance proceduresA complaint needed to pass a screener first. If the screener thought that the complaint should not progress, a lay screener needed to agree with the decision. Otherwise the doctor would be invited to undergo a performance assessment. If the doctor did not agree to a performance assessment, the case would be passed to the Assessment Referral Committee. If a performance assessment was decided, a case coordinator would appoint performance assessors to form the Assessment Panel. Performance Assessment composed of two phases. Phase I was peer review. Failing phase I would lead to the competence tests in Phase II. If the doctor failed to comply with the statement of requirements complied by the case coordinator, or the case coordinator considered necessary for public protection, the case would be referred to the Committee on Professional Performance.
The key criticisms of the old systemOne of the major criticisms of the old system was that the culture and attitude in GMC aimed at being fair to doctors instead of patient protection. The disciplinary function was reactive and complaints-triggered, as highlighted in Krippendori v GMC where it was decided that the FTP procedures extended only to conduct which was the subject of a complaint and no independent review of the doctor’s conduct could be performed. The Inquiry summarizes criticisms to the GMC in the 1980s : “One might summarize those criticisms by saying that the GMC was ‘doctor-centered’. It appeared to assume that all doctors were good, competent and conscientious until proved otherwise. It would deal with the profession’s ‘bad apples’ for the sake of the profession. It would do so in its own way and did not welcome scrutiny. Its procedures were designed to be fair to doctors and to ensure that no doctor would lose his/her right to practice without very good cause. It did not focus on the reasonable expectations of the public and it did not see itself as having a duty to ensure that all members of the medical profession were willing and able to provide a proper professional service.”Outcries for the failure to protect patients became more intense in the 1990s. In the Bristol case the GMC admitted errors in registering Richard Neale, the paediatric cardiac surgeon, who had been erased from the register in Canada in the 1980s and proved to be incompetent in his UK practice . Another case concerned Harold Shipman, a general practitioner who had murdered over 200 of his patients. Shipman had a history of substance abuse and he killed his patients by overdosing pethedine. He had been reported to the GMC for alleged misconduct in three occasions, but was allowed to practice without restrictions and there was no monitoring of his progress. The public considered the GMC failed in the respect of patient protection. The Shipman Inquiry looks into this incident. Leading Counsel for the GMC admitted in the Inquiry’s oral hearing that the FTP procedures had failed in many respects to meet the reasonable expectations of patients and the public . There was lack of transparency of the system. Operational problems included unacceptable delay in dealing with complaints and concerns about doctors, failure to investigate complaints adequately, failure to follow up complaints that had been referred to other bodies for investigation and cases which should not have been closed had been closed. The quality of decision making was also admitted to be far from satisfactory. There had been lack of consistency and the quality of decisions variable. Approach had been idiosyncratic rather than systematic and there was unacceptable disparity between outcomes of cases. There was absence of satisfactorily planned and structured training for staff and panelists. Panels and committees failed to give reasons for the decision in the past. In recent times, reasons given were not always what they should be. There was insufficient audit of GMC decisions and the few audits had been more enumerative than qualitative.Procedures were criticised that they failed to serve the main purpose of patient protection. Separation of the procedures into discrete categories produced the “silo effect”. A case could not be handled within more than one set of procedures at any one time. Complicated cases might not be tackled thoroughly.Concerning the Conduct procedures, the three screening processes were held in private. Only 5% of the complaints reached the PCC. At least 65% were closed at initial sift by GMC staff. This initial sift by administrative staff with no medical training offered not enough protection to patients. Also they would not accept cases unless complainants had pursued local complaints procedures to their conclusion. They did not investigate until complaints reached PCC, and they would not investigate into doctors’ background information.In the screening stage, statutory test for screeners was imprecise and was reversed . Wide discretion by screeners produces inconsistency. Cases that warranted action were filtered out. The meaning of SPM was not defined and this caused difficulty in recognizing SPM. In the PPC, the test applied again was imprecise. There was wide discretion same as screeners. Professor Isobel Allen pointed out that there was a propensity for panel to deciding whether the allegation amount to SPM, rather than to limit itself to deciding whether the case ought to proceed to the PCC. There were wrong decisions because of desire to be fair to doctors. And the PSI Paper 2003 showed there was inconsistency in dealing with conviction cases.In the PCC, lack of standard leaded to inconsistent decisions. Sir Donald Irvine agreed that there were much dispute about what amount to SPM. In 1999, an Internal Working Group found that there were instances of inappropriate sanction, sanctions inconsistent with previous decisions and failure of panels to give detailed reasons for their decision.
For the Health procedures, as in Shipman’s case, loopholes were found where patient protection was not ensured. Doctors who had been abusing drugs were referred more or less automatically into the voluntary health procedures. The approach towards doctors who were dependent on drugs was rehabilitative. Doctors were treated as victims of drug addiction. There was not enough investigation or assessment on the doctor.
For Performance procedures, performance assessment was expensive and time-consuming. The standards of performance imposed by the Committee on Professional Performance were very low and in fact lower than that of the second phase of the performance assessment. Doctors under voluntary undertakings or being imposed conditions upon their registration were not supervised well enough and were sometimes allowed to resume unrestricted practice without having produced adequate evidence of improvement.
Another major criticism of the old system was that both the investigation function and the adjudication function were preformed by the GMC. This was in contradiction to the Human Rights Act 1998 which entitles a person to a fair and public hearing by an independent and impartial tribunal.
The GMC 2001 Consultation Paper came to similar conclusions and that a new system should be designed.
The radical overhaul of the system: the new systemThe new procedures involve a new unified approach, the “impairment of fitness to practice”, and abolish the three separate procedures. Complaints will be considered by GMC staff and refer to a medical and a lay case examiner if the case falls with s35C (2) of the Medical Act 1983 . Case examiners will investigate the allegation and decide whether to refer to a Fitness to Practice (FTP) Panel. Case will be referred to the Investigation Committee when the two case examiners disagree or when an oral hearing is needed to determine whether a warning should be issued. These compose the investigation stage. The President of the GMC can review a decision of the investigation stage.The adjudication stage is performed by the FTP Panel. The new wection 35D of the 1983 Act provides the powers for a FTP panel to restrict or remove a doctor’s registration if it finds that his fitness to practice is impaired. A doctor can appeal a FTP Panel decision to the High Court. The CRHP/CHRE can refer a decision by the Panel to the High Court. The complainant can apply for judicial review.The Interim Orders Panel replaces the Interim Orders Committee to deal with cases where it is appropriate to impose an interim order restricting a doctor’s right to practice pending investigation and determination of his case.
Can it address the criticisms of the old systemThe Inquiry gives an overall negative comment on the new system: “In 2001, the GMC set out its vision for the new FTP procedures. They were firmly based on the ideal of instituting procedures that would provide proper protection for patients without sacrificing the need to be fair to doctors. My general conclusion has been that, in implementing the new procedures, the GMC has to some extent lost sight of its earlier vision. In developing the new procedures, there has been a good deal of ‘chopping and changing’. It has been difficult to recognize the principles underlying many of the changes.”
One important pointer to the determination of patient protection is the culture and attitude of the GMC. The Inquiry states that “It is axiomatic that the best indicator of future attitude and performance is past atitude and performance.” Many aspects have shown that there is no major change in the culture and attitude of being “doctor-centered”. One such aspect is the lack of transparency in the development of the new procedures. Meetings were held in private and there was no means for the public to take part in modeling the new procedures. Another aspect is the failure to separate the function of investigation and adjudication, despite the gesture of consultation and determination to comply with the Human Rights Act 1998. Also, procedures are designed to err on the side of being fair to doctors than to protect patients. Procedural inadequacies can be amended and corrected, but this needs to be backed by a real change of attitude towards patient protection before the GMC can take initiation in perfecting the new procedures.
Procedural analysisInadequacy and changes to the worseThere is lack of transparency in the process. Internal rules are not made known to the public. Clear statistical information is not provided by the GMC, such as the way reports of convictions are dealt with. This hinders scrutinizing of the processes.
Investigation and adjudication functions are not seperated. After the consultation paper in 2001, GMC has chosen to retain both the investigation and the adjudication function, only that the two functions are intended to be carried out by different personnel. The FTP panel in the adjudication stage comprises non-members of the GMC. However, they are selected, trained and appraised by the GMC. Thus the panelists will not be at all independent of the GMC. Influence by GMC on the penals is also evidenced by its intention to inform the doctor of the desired outcome of a case in advance of a hearing. This is commented as “to tie the panel’s hands”. The Inquiry recommends that hiving off the adjudication function would be a better option. Otherwise, FTP panelists are recommended to be selected, trained and appraised by a body independent of the GMC . Full time panelists are recommended and also a full-time legally qualified chairman.
The term “impairment of fitness to practice” is non-specific. Although s35C of the Medical Act 1983 provides some guidance, it does not define the term or set any standard. The previous problem of defining and recognizing SPM will be perpetuated and even increased. There is a need for a test which the public understands and by which the courts can judge whether a decision was lawful in the sense of cimplying with the test. There is also a “lacuna” identified in S35c concerning impairment of FTP . A further route is suggested by the Inquiry for better patient protection by identifying potential dangerous doctors: deficient clinical practice. This would cover those cases which involve one or two incidents of negligence or poor clinical practice which do not amount to misconduct and do not trigger a performance assessment. Guidance issued for case examiners and panelists also does not help them to decide where to draw the line of what amount to impairment of fitness to practice. They are thus left to apply their own personal standards. At the investigation stage, no provision states the test for the Investigation Committee to decide “whether it should be considered by a FTP panel.” The test used by the GMC is “whether there is a realistic prospect of establishing that the doctor’s fitness to practice is impaired to a degree justifying action on registration.” This test is criticized for focusing on issue of sanction rather than effects of the doctor’s action on patients and it involves value judgment. The threshold is also too high for it considers a realistic prospect. A two-stage test is suggested in the Inquiry which incorporates patient protection and objective criteria “to ensure that all those cases that ought to proceed do in fact proceed to a FTP panel.” Similar problems are found of the adjudication test. The statutory test is whether or not the doctor’s fitness to practice is impaired. This requires a value judgment that is not underpinned by any objective criteria . Problem of screening out potential cases still exist. A two stage test is also suggested in the Inquiry. Power to direct investigation, performance assessment and health assessment at the investigation stage lies solely with the Registrar, which in practice means the GMC staff, who is not medically trained. After assessment, there is no provision that the Registrar should send a copy of the assessment report to the doctor’s employer or primary care organizations. Communication with the employer is not ensured. The Investigation Committee undertakes both casework function and governance functions . Self audit is not acceptable.
Shortfalls are also found in the disposal of liable cases. There are no clear criteria for the sending of letters of advice by the case examiner or Investigation Committee. There is a danger that this procedure will be adopted in cases which should be dealt with more severely. The proposals to issue warnings at the investigation stage for a summary oral hearing should be replaced by a full hearing under the FTP panel. The November 2004 Rules permit a decision to cancel a hearing to be made if evidence becomes available which suggests that a doctor’s fitness is not impaired or if it appears that for some other reason, the hearing before the Panel should not be held. These lack transparency and are open to abuse. To make things worse, cases closed at this stage would not be revived.For voluntary undertakings in cases with health or performance element, responsibility for the operation of many aspects is removed from case examiners or medically qualified performance case coordinators to GMC staffs.
For the adjudication stage, there is no clear mentioning of the standard of proof for the FTP procedures. Application of different standards of proof may cause difficulty. The guidance to the 2004 Rules suggested the criminal standard of proof to be used for finding of facts. The Inquiry prefers the civil standard of proof as the GMC’s primary function is to exercise a protective jurisdiction and not a punitive one. There are loopholes at the FTP Panels where problematic doctors might be left under-investigated. There is no provision to take the doctor’s FTP history into account. There is no provision to ensure searching examination of the circumstances underlying drug abuse cases and how the drug abuse began. By rule 17 (5)(b), on receipt of a health or performance assessment report ordered by the FTP panel, the panel is empowered to send the case back to the investigation stage for case examiners to consider whether the doctor can be dealt with by voluntary undertakings. A new provision, rule 17(2) (m), permits a FTP panel to take into account written undertakings by the doctor which the FTP panel considered to be sufficient to protect patients and public interest. However, there is no provision within the Rules for supervision of the doctor to ensure compliance with the undertakings and for dealing with a breach. This might cause the panel to take this into consideration before deciding whether there is impairment of fitness to practice and thus causes “fudging” of these important issues.
Thorough follow-up of cases is not ensured. There is no provision for monitoring and supervision of doctors whose registrations are subjected to conditions imposed by a FTP panel, or those given voluntary undertakings. This is a change to the worse. There is no secure mechanism to identify breaching of conditions imposed and actions cannot be taken. There is no provision that a review hearing be mandatory when a period of suspension of registration or undertaking is imposed. If there is such review hearing, it is conducted by the Registrar and not the case examiners. For consideration of restoration to the register after the period of suspension, it is the GMC staff’s responsibility instead of that of case examiners. The staffs are not medically trained and thus not in the best position to understand the nature of the cases and ensure patient protection.
Good changesThere are some changes which are welcome by the Inquiry. One is the amalgamation of the old conduct, health and performance procedures into one set of FTP procedures. Allegations of different types against the same doctor will be capable of being heard at the same time.
The preliminary stages are simplified, and GMC will not close allegations made by private individuals just because the local complaints procedures have not been exhausted. Also GMC is willing to make enquiries of employers and primary care organizations before deciding whether a case should be rejected at an initial stage. Cases will be disclosed to employers when they survive the initial sift. This enhances communication and transparency.
For the investigation stages, better investigations at an early stage are done by investigators with advice from in-house lawyers and they can order a medical examination or performance assessment. Indicative Sanctions Guidance has been published which is helpful to guide appropriate sanctions for different cases. A review of investigation stage decisions is introduced, though it would be better if the review is not carried out by the President of the GMC as proposed, but by an independent external commissioner.
For the adjudication stagesLegally qualified case managers will conduct pre-hearing case management and makes hearing more efficient. The FTP panel has the power to order a health or performance assessment before decision. Rule 17 (4). Investigation would be more thorough.
ConclusionThe overhaul of the GMC’s system to deal with “fitness to practice” issues is by no means radical. Standards and criteria for “impairment of fitness to practice” are not clear. The is no satisfactory seperation of investigation and adjudication functions. The procedures lack transparency and lack mechanisms for audit of processes and outcomes. Although there are a few good changes identified, the new procedures fail to address the key criticisms of the previous system. The main concern is not enough patient protection. Central to the criticisms is that there is no clear evidence the GMC has changed its culture and attitude from doctor-centred to patient protection. We have to wait and see whether the GMC would adopt the recommendations from the Shipman Inquiry to “overhaul” the new system.
3996 wordsBy Cheng Chi Man
Reference
Statutes 1. Health and Social Policy, University of Westminster Policy Studies Institute Paper 20032. Human Rights Act 19883. Medical Act 19584. Medical Act 19835. National Health Service Reform and Healthcare professions Act 20026. The National Health Service (Complaints) Regulations 2004, Statutory Instrument 2004 No. 17687. Professional Conduct Rules 1988
Cases 1. Frippendori v GMC [2001] Lloyd's Rep. Med. 9
Articles 1. Committee of Inquiry into the Regulation of the Medical Profession. Report. London: HMSO, 1975. (Cmnd 6018; Merrison Committee report.) 2. The Bristol Royal Infirmary Inquiry Report3. GMC 2001 Consultation Paper “Acting fairly to protect patients: reform of the GMC’s fitness to practice procedures”4. Self-Regulation and Paragons of Virtue: The Case of ‘Fitness to Practice’, Paula De Prez, Med Law Rev 2002.10(28)5. Fifth Report, Shipman Inquiry: “Safeguarding Patients: Lessons from the Past- Proposals for the Future”
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