Examination of witnesses (Questions 300 - 319)
THURSDAY 1 JULY 1999
PROFESSOR HILARY THOMAS, MISS ISABEL NISBET, MISS MANDIE LAVIN, DR CHRISTINE TOMKINS and DR STEPHEN GREEN
300. Do you feel there should be a statutory requirement for such actions to be reported to the GMC?
(Miss Nisbet) I do not think the Council has expressed a view on whether it should be a legal requirement. We certainly think they should do it more often.
301. In relation to your procedures for suspension or striking off, you may know I introduced the NHS Amendment Act in the last Parliament in order to give family health service authorities, as they then were, greater powers to suspend a doctor on full pay, and that arose out of the frustration I felt about the GMC's procedures. A local general practitioner had been referred to the GMC for a whole range of concerns about conduct and performance and the recommendation of the GMC was he should be struck off, but he then went through a whole series of appeals, including an application for judicial review, an application to the Judicial Committee of the Privy Council, a whole series of delaying tactics, during which time the GMC informed me that there was no power they had to take any action to prevent him from practising while those procedures were going forward. For four years that doctor continued to practise after a recommendation that he should be struck off. Is that still the procedure? If it is, is it a sensible one?
(Miss Nisbet) I understand what lies behind your question. My understanding is that the Professional Conduct Committee can decide that a doctor should be erased with immediate suspension. I do not know about the case you mention but if they had not made such a determination, then I expect there might be a problem. But they can do so, and I have seen judgments in the last few weeks when they have. If they think the doctor should be off the pitch now, they can make that determination, so all the appeals and everything would happen while the doctor was suspended.
302. So there is power to suspend a doctor pending an appeal but only if that was the initial recommendation?
(Professor Thomas) There are two points at which a doctor can be taken off a medical register and prevented from having dealings with patients. One is the power of interim suspension under the Preliminary Proceedings Committee , and that is a power which is being exercised far more frequently now than it was three or four years ago. If the Preliminary Proceedings Committee take the view that the doctor is potentially such a danger to the public, they can suspend that doctor pending the case being heard before the professional conduct committee. In addition to that, the professional conduct committee, when it then hears the case, has the right to erase the doctor with immediate suspension, but they still have the right of appeal, clearly. So we can immediately erase them and prevent them from seeing patients, and I suspect that is a power which is exercised more frequently now as well.
Mr Lewis
303. I want to go back to the Chairman's opening question and I want to ask you a very simple question along similar lines. Why should the medical profession have the right to the privilege of self-regulation when so many other professionals do not have that right? Is it not the case that your reference to increasingly involving lay people is really a sop to the view that doctors cannot be trusted to regulate doctors? Finally, on that very issue, if the argument against non-self-regulation is that lay people are not qualified or able to make judgments about medical practice, that is slightly different from saying that you are expanding the role of lay people internally to assist people with medical expertise in making judgments about doctors.
(Miss Nisbet) Why should doctors have the privilege that other professions do not have, the answer is, they should not. You have to look at each one on its merits. The advantages in professionally-led regulation are the ones of ownership and that it feeds in and out of professional ethics and the real chance of bringing about change, compared to externally-imposed regulation which has problems of ownership and resistance. I should say as a lay person who has worked for four years as somebody making lay judgments on clinical matters, I would not have come to the GMC if I thought it was a cover-up in favour of the profession. I came here because it seemed to me this was the best way of making change happen in the profession and that is a pragmatic judgment. In terms of the involvement of lay people, it comes from a recognition which I am sure Professor Thomas can amplify, that you cannot say that clinical matters are purely a doctor's concern and other matters, like communication and listening to patients, are non-clinical and for lay people. The fact is they are all parts of good medical practice. On the assessments and performance procedures, and I have witnessed those assessments, there are some aspectsfor example, going through a doctor's case to see which medicines he has and whether they are at the right dateswhich would require clinical knowledge which the lay assessors would not be involved in. But, for example, observing a consultation, or in the way the doctor was regarded by peers, are things that lay involvement can have an important input to. What we say is that it is a collaborative venture. I realise others will have their own views and it is a matter of judgment, but that is my view and my personal view.
(Professor Thomas) My viewand I hope I reflect some of the membership of the GMCis that you can only defend self-regulation if it is the most effective way of delivering a better service. If it does not actually stand up to that scrutiny, then you cannot justify it. It may be that we need greater lay representation and a greater profile for lay members on the Council. I know the president is of the view it is about time we had a chairman of the committee of the General Medical Council who was a lay member. In terms of an alternative to self-regulation, in some of the processes we are undergoing at the moment, in particular revalidation, there is a degree of resistance clearly on the part of the medical professionmuch of it out of ignorance really and not knowing what this process is going to involve. The culture change that that will try to effect I suspect would be achieved more quickly and perhaps more effectively by bringing the medical profession with it rather than imposing it externally. I think if you look at other countries where they have a greater external regulation, you also have a lower status and lower morale profession. So I think there are balances both ways. Clearly any external regulator would have to have medical input if it was about matters of clinical expertise and judgment. So it may be simply about balance. But I would not advocate maintaining self-regulation at all costs if you could not justify it was the best and the most effective way of doing it, and I believe that both this Government and the previous one see that.
Mr Gunnell
304. If you strike a doctor off your register, he cannot practise any longer in the UK while that is in force?
(Miss Nisbet) Yes.
305. Can he go overseas and practise?
(Professor Thomas) If he is licensed with another authority overseas, yes, he can. Where things are improving, I believe, is that we have a greater dialogue with other licensing or registering bodies in other countries so that we can inform them. Certainly there have been examples of doctors coming to the UK where they have subject to procedures in their own country and of the GMC being informed, but unfortunately that is not a water-tight situation as yet.
306. So are you attempting to get some internal agreement between yourself and parallel organisations?
(Professor Thomas) Yes, and there are regular meetings between the different registration and licensing bodies on a biennial basis which the chief executive and the president attend.
307. So normally you would inform the overseas body responsible for regulation in the country that the person went to that you had had to exclude them from your register?
(Professor Thomas) If we knew they were going to that country, which is the other difficulty.
308. Similarly, you would expect them to inform you if someone was struck off their register, and then presumably you would warn any trust employing them that they had been struck off the register in another country?
(Miss Nisbet) Two points, Chairman. One is, obviously we do not know all the possible countries that any doctor could go to, but most other countries could ask the doctor to produce a certificate of good standing from the General Medical Council, and we would not give that if the doctor had been struck off or was under suspension. The other point is that we have looked recently at our practices in informing those with a legitimate public interest even if a doctor is at an earlier stage of our proceedings. I do understand that is itself a controversial and risk-balancing thing to do but I myself authorised recently, where a doctor was planning to travel abroad to work with children, that information be given to his potential employer at an early stage because the public interest and the safety of children overrode all other considerations, and there is clear guidance from the GMC itself that that is the case. Even the duty of confidentiality can be trumped by the duty to protect patients.
309. You would have links presumably with the parallel organisations in the majority of Commonwealth countries?
(Miss Nisbet) Yes.
310. And in the majority of countries in the European Union?
(Miss Nisbet) Yes.
Audrey Wise
311. Has the GMC discussed, or if it has not do you think it should discuss, tightening up the procedures about referral? We have heard about the question of coroners and it seems as though it is very much up to the coroner. We have had evidence of an avoidable deathstated by the coroner to have been an avoidable deathwhich I do not believe was referred. Do you think it should be much more a duty? We have also had evidence about somebody who was struck off in another country, do you think that should automatically entail referral to the GMC even if just for advice? Are you satisfied with what seems to me to be the fairly random, ad hoc, "it might or it might not" pattern of referral?
(Miss Nisbet) Chairman, we are not satisfied and I understand the views which lie behind the question. For example, we have been involved in discussions, encouraged by the Department of Health, about better and more robust relationships with the NHS disciplinary system and in particular that cases do not fall down slots between the two. Also, at the bottom line, there is a duty on every individual doctor to pass on to the GMC concerns about the safety of a colleague. In terms of international co-operation, yes, I agree we have these close links which Professor Thomas has described, and if there are ways we can communicate earlier and more clearly with each other, we should. It is difficult to trace down doctors who hop around many different countries.
312. I understand that.
(Miss Nisbet) But we are not satisfied with the present situation.
313. Also if a trust knows that somebody has been struck off and makes its own enquiries and is apparently satisfied, do you think that is satisfactory? Should the trust have to involve you?
(Miss Nisbet) If the person had been struck off by the General Medical Council, they would not be able to practise. If the trust knew they had been struck off in another country and either they or someone else had referred the matter to the GMC, the GMC would have to make a decision about whether the person should be allowed to practise in this country.
314. But should the trust have been obliged to refer it to the GMC? The trust in the particular case just made its own decision, which was to do nothing. Should that trust have been obliged to refer it to the GMC?
(Professor Thomas) I think a situation where they were obliged, would be an improvement. I think we would welcome that.
Dr Brand
315. In fact, Mr Chairman, I have written down ad hoc as well, because we rely very much on registration both in the UKCC and the GMC, yet the systems we have in place are almost there to avoid referral, internally trying to sort out what the problems are, bring in the three wise men or women as appropriate and seeing if you can help a colleague through a particular case. I am very unhappy about the way that we are directing criticism of registration. It may be the registering bodies get it wrong occasionally in the public view rather than the public and other public bodies not recognising that they have a responsibility to involve the registering authorities. Specifically I was going to ask, what sort of links do you have when practitioners are being sued for negligence, for instance? If they are found guilty in a court and an order is made against them, presumably you would hear about that?
(Professor Thomas) Not automatically.
(Miss Nisbet) Not automatically. If they had a criminal conviction, we should hear automatically, and we almost always do. Again, I share the sentiments behind your question, if the civil case was thought to raise questions about the doctor's fitness to practise, it would be a duty on those involved to refer it to us, but you then say to me, how can I know that will happen, and we do not know.
Chairman
316. When you say "those involved", whom do you refer to there?
(Miss Nisbet) For example, if there was a civil case against a consultant in a hospital, I would expect the trust would have to make that judgment.
(Professor Thomas) We can only ask people registered with us to have those responsibilities. We make that clear in Maintaining Good Medical Practice and Good medical Practice, our guidance, that doctors have a responsibility to inform us if they are concerned about the conduct of a doctor. We have some referrals into our procedures when negligence has been found by solicitors firms, but it is not a uniform process.
Dr Brand
317. I fully accept that it is desirable to have professional input in the registration system, but to rely on the profession itself to be the only ones who are liable to make the referrals officially, I think is totally wrong. I think there must be a role for the defence societies in this. If a case is being settled out of court because it is indefensible, presumably something has gone wrong and the competence or attitude of the fitness of that doctor should be questioned. At the moment, as I understand it, a doctor may have a settlement made on their behalf by the defence organisation out of court, he may continue to make the same mistakes and it is only after two or three times that the defence society says, "We do not want you as a member any more." Before that happens, I think someone in the registration authority should be looking at that, and I think the same applies to the UKCC.
(Miss Lavin) There are a couple of differences with the UKCC. I think the most common scenario is where we have civil litigation relating to a birth trauma case and quite often the conclusion of that, which can be many years after the event, is that the midwife might well be referred to us. I certainly have a number of cases in the system where the NHS trust involved did not refer and later on the parents did refer, following the court case, and as a result the midwife was struck off. I think our links with the civil litigation system are very weak and I am sure there are many cases which are heard which call into question the competence of practitioners which never reach us as a regulatory body. I think it is difficult to know how you capture the claims which are resolved prior to court settlement because there is a drive to resolve complaints earlier and at a lower level in an organisation. How you resolve that with the professional accountability of the individual and the continuing competence of the individuals involved, I think is really very hard. Just going back to the overseas issue which was raised earlier, I wanted to clarify one point. We do routinely notify all the other regulatory bodies across the world as far as we have them on our mailing list of all suspensions, removals and cautions from our register. With regard to the reporting of convictions, we do get some convictions reported to us from other countries, and at the moment convictions account for about a third of all the cases we deal with, but in fact in the Government's recent review it was highlighted as being an area where we really do need to do some work and get the system tightened up.
318. I would be interested to hear the GMC's response to that.
(Miss Nisbet) The first point is that the police have a duty to inform us of all criminal convictions of doctors. The only time that does not happen is when there has been a slip-up, but there should not be any slip-ups, and so occasionally we find out about them through newspapers or whatever. I accept the point that lies behind your question, it is haphazard and on the whole we are relying on exceptional reporting and it does not always work. What I would say is that in the example of the judgment by the professional conduct committee against the chief executive of the trust in Bristol involved in the case thereand the chief executive was a doctorhe was strongly criticised and erased for not taking action on concerns about what was happening in the trust. I realise this is a personal obligation
319. But that was because he happened to be a doctor?
(Miss Nisbet) Because he was a doctor.
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