Policy responses and statements
- Name of organisation:
- General Medical Council
- Name of policy document:
- Reform of the fitness to practise procedures
at the GMC - changes to the way we deal with cases at the end of an
investigation
- Deadline for response:
- 11 April 2011
Background: This consultation considers
proposals for changes to the way the GMC deals with fitness to practise
cases at the end of an investigation. They set out a possible new approach
which would involve entering into discussions with doctors who are
referred to the GMC in an attempt to gain their cooperation to putting
the necessary patient protection in place. If adequate protection can
be achieved by consent, futher action by the GMC may not be required.
In particular, if patients and the public can be protected, there may
not be a need for a public hearing.
This consultation contains proposals for a faster mechanism for taking
action in relation to doctors who breach the GMC's standards than its
current approach of sending the majority of cases to a public hearing.
The GMC is proposing to introduce greater discussion with doctors to
encourage them to accept the measures necessary to protect the public,
without the need to refer the case to a public hearing. The consultation
also proposes automatic suspension for doctors who refuse to cooperate
with the GMC's investigation and considers whether certain criminal
convictions are so serious (for example murder or rape) that they should
carry a presumption that the doctor will be erased from the GMC register.
COMMENTS ON
GENERAL MEDICAL COUNCIL
REFORM OF THE FITNESS TO PRACTISE PROCEDURES AT THE
GMC - CHANGES TO THE WAY WE DEAL WITH CASES AT THE END OF AN INVESTIGATION
The College is pleased to respond to this consultation and understands that,
since the publication of this consultation, the UK government has signalled
the abolition of the Office of the Health Professions Adjudicator (OHPA).
The College has consulted with Fellows with experience of fitness to practice
panels and the College Lay Advisory Committee, and has comments on the following
points:
- a need for full transparency at the investigation stage
- a need to avoid any perception of negotiation in arriving at sanctions
- concerns about sharing information on a “without prejudice” basis
- a need for exemplary investigation and reporting procedures
- the importance of public reporting for public confidence
- concerns about a specific list of automatic sanctions
Answers to the specific consultation questions follow:
Q1. Do you agree where there is no significant dispute about
the facts, we should explore alternative means to deliver patient protection
other than sending cases to a public hearing. If you disagree, please give
reasons for your answer.
The College understands that the purpose of a public hearing is to determine
the facts and that the GMC has a primary responsibility to protect the safety
of the public rather than to punish doctors. This being so, there is much merit
is reducing the time and expense of conducting public hearings. However the
College is fully aware that, as the regulator, the GMC also has a responsibility
for public confidence in the medical profession, and therefore transparency
in procedures and outcomes from any new system is essential along with lay
input into the determination of sanction.
It is hoped that the new system of GMC Employer Liaison Advisers will go some
way to ensuring issues are handled locally, reducing the number of referrals
to the GMC, and which are so damaging to doctors, witnesses and complainants
Q2. Do you agree that it would be appropriate for
the GMC to have discussions with doctors in order to foster cooperation?
If you disagree, please give reasons for your answer.
Discussion with doctors is essential to ensure that doctors understand the
options open to them. However, the question is unfortunately worded as
it implies some sense of negotiation between the GMC and doctor when it is acceptance of
the GMC decision that is on offer, following confirmation of the facts.
Q3. Do you think doctors should be able to share information
on a “without prejudice” basis?
Whilst intuitively attractive to encourage full reporting and facilitate investigation,
it is difficult to see how a subsequent public hearing in the event of failure
to accept sanctions could ignore information given previously to investigating
officers. This would require the GMC only to use this information to trigger
separate investigations to verify facts given earlier and rescinded and could
damage confidence in the process. It is also unclear how this would sit
alongside a doctor’s professional responsibility for probity.
Q4. Do you agree that we should consider ways to access
practical facilitation skills to support constructive discussions with doctors?
The calibre of investigating officers will be critical to the success of achieving
acceptance of investigation and sanction. Well-developed facilitation
abilities will be among the key skills required of these officers, but they
will also require an understanding of the work environment of doctors and the
standards required of doctors. The GMC will need to recruit and train
a team of investigation officers who are independent of the sanction setting
process; contracting in facilitation experts will only be of partial benefit. The
abolition of the Office of the Health Professions Adjudicator makes the independence
of investigation from sanction setting all the more important. However, the
use of well-developed facilitation skills at local level to avoid referral
to the GMC would bring major benefits.
Q5. Do you agree with the approach outlined for communicating
with complainants about our discussions with doctors?
The investigatory stage should be a standard part of each case, the outcome
of which could be exoneration, accepted sanction or public hearing. Clearly,
all complainants should be advised of the GMC procedures, particularly the
objective of public protection without being punitive. Complainants should
also be advised of the outcome of the investigatory stage and the justification
for the GMC choice of sanction should be made clear. Indeed, for public
confidence it may be necessary to put all of this information (excepting health
and third part details) into the public domain.
Q6. Do you think the term” by mutual agreement” correctly
reflects the outcomes of discussions with doctors?
The College would prefer the term to reflect the acceptance of a GMC determined
sanction as “by mutual agreement” implies negotiation. Adopting
the style “accepted or uncontested sanction” would be preferable.
Q7. Do you think that publication of the sanction accepted
by the doctor will maintain public confidence?
Transparency offered by full publication of the complaint and investigation
findings (excepting health related and third party details) will allow public
scrutiny of the appropriateness and consistency of sanctions accepted by doctors
subject to complaints. However, this alone cannot guarantee public or professional
confidence.
Q8. Do you believe we should publish a description of
the issues put to the doctor? What other information (mitigation etc) should
we publish?
See above.
Q9. Do you think our proposals are a reasonable way to
deal with any risk of deterioration of evidence?
The College understands that the proposals require the doctor to accept two
related but different things: the facts as laid out by the investigation and
the sanction determined by the GMC. Both are essential lest a doctor
accepts a sanction to avoid the publicity and stress of a public hearing but
does not accept the substance of the complaint. Requiring a signed acceptance
of the statement of facts will reduce the risk of evidence loss should a doctor
attempt to amend the facts on applying for restoration.
Q10. How do you think that we might ensure that unrepresented
doctors fully understand the implications of signing a statement of facts?
It seems unlikely that, given the importance of the accepted facts, many doctors
will be prepared to sign the statement of facts without first seeking legal
advice and most will be members of a defence union. This will negate
much of the financial saving expected from this amended procedure, as investigation
reports will need to be carefully worded and evidenced. Indeed, those
sitting on GMC panels advise that unrepresented doctors are treated very carefully
by panels and GMC counsels, recognising the vulnerability of such doctors. The
formality of a hearing is one benefit that may be lost if doctors are encouraged
to accept the facts and the GMC determination.
Q11. Are there any cases which should be referred to a public
hearing even where the doctor is willing to agree the sanction imposed?
The GMC has public protection as a primary objective and, if facts and sanctions
are accepted and the sanction is erasure, there should be no need to refer
to a public hearing. However, there will be cases where a statement of facts
is contested and/or where the sanction is less than erasure, and there may
be judgement difficulties in terms of the level of sanction recommended – in
such cases the GMC or the doctor may wish the additional scrutiny and protection
of a public hearing. The College does not believe that individual complainants
should have the right to demand a public hearing.
Q12. Do you agree that there are some convictions that are so serious
that behaviour is incompatible with continued registration as a doctor and
that there should be a presumption that the doctor be erased?
The question for the GMC is whether any further investigation is required
in cases when the facts have been tested under criminal law, which has a higher
burden of proof (beyond reasonable doubt) than the civil proof (on the balance
of probabilities) now required by the GMC. Custodial sentences will evidence
the facts but, unless the GMC is intent on erasing every doctor with a custodial
sentence, it should take due account of context and mitigation before arriving
at their own sanction. Doctors should still have the option to accept
erasure or to opt for a public hearing to challenge it.
Q13. Do you agree that the convictions we have identified are convictions
which fall into this category
The College believes it is extremely difficult to create a list of crimes
that result in automatic erasure, not because those already listed are not
serious but rather that the list may be incomplete. It may be safer not
to specify and treat each case individually.
Q14. Are there any other convictions you think fall into this category?
See above.
Q15. Do you agree that doctors within our fitness to practice procedures
who refuse to engage with our investigation, where we have made every attempt
to seek their engagement should be automatically suspended from the register?
The College believes that failure to engage with the regulator brings the
profession into disrepute and should be taken seriously. Suspension,
after preliminary investigation, and pending a full investigation and/or public
hearing is an appropriate action for public protection. This will also
serve to encourage engagement, but the GMC has a duty to complete investigations
quickly to avoid unnecessary stress and adverse publicity for doctors.
Q16. Do you think these proposals will benefit or disadvantage
any groups of people who are involved in our fitness to practice procedures?
The proposals have the potential to speed up procedures, thereby avoiding
unnecessary stress on doctors, witnesses and complainants.
Q17. Do you think these proposals will impact on the confidence in
our procedures of any particular groups of people?
The proposals may not appeal to those seeking public retribution and may leave
complainants and bereaved families and friends feeling that doctors have escaped
justice. The GMC must put additional effort into communicating the public
protection role of the regulator and the need to move away from a punitive
approach. Similarly, the GMC must develop transparent quality assurance
of all investigatory processes and accepted sanctions to reassure doctors and
the public of the fairness and consistency of the processes. Publication
of the outcome of investigations where there are “accepted sanctions” will
support confidence in those cases avoiding a public hearing.
Copies of this response are available from:
Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.
Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939
[24 March 2011]
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