Examination of witnesses (Questions 340 - 359)
THURSDAY 1 JULY 1999
PROFESSOR HILARY THOMAS, MISS ISABEL NISBET, MISS MANDIE LAVIN, DR CHRISTINE TOMKINS and DR STEPHEN GREEN
340. If you are a defence union and therefore have to pay out sometimes very substantial sums of money on behalf of your members, is it not true to say that your role in prevention, therefore, should be absolutely paramount?
(Dr Tomkins) Yes.
341. You are not dealing with under-performing doctors until they are brought to your attention by a claim or a complaint, how is it then that you can protect your financial interest as well as your members' interests by preventing it happening in the first place?
(Dr Tomkins) I think that is a very good question and I would like to ask my colleague, Stephen Green, who is our Head of Risk Management, to answer that.
(Dr Green) The MDU is concerned about prevention. Our members are concerned about prevention; no doctor ever wants to harm a patient. We have invested heavily in risk management which is the active way of trying to promote learning from medical accidents. For the last five years we have had a team, which I head, which contains another doctor and three nurses, and our prime function is to look at the cases that the MDU has had reported to it and to analyse those cases and use the results to form risk management advice, giving doctors advice about the lessons that come from the cases that we do know about so that they can use that in reflecting on their own practice to prevent further harm to patients. No doctor wants to make a mistake and then make it happen again. We have published lots of reviews of complaints and claims. We have looked at sharing our data with other organisations both in Europe and in the United States. The one thing that we find difficult is that we do not know very much about what is arising from the NHS because it appears that the NHS does not publish and promote the information as we do. One of the things we would certainly like to say to this Committee today is that we are willing to share our data and we would like to see similar types of data published by the NHS.
342. What do you mean by the NHS is not publishing data, what does that mean exactly?
(Dr Green) For instance, we have a series of booklets which look at claims and complaints arising from general practice which we have published over the last three years and our members find them very valuable. We do not see the same sort of information arising from the NHS. For instance, we have participated in a data sharing exercise on cases involving breast cancer with the United States. We contributed some of our data to their data pooling. They published a very big study on cases involving breast cancer. We know what cases we have that involve breast cancer from the private sector because that is where we indemnify our members, but we do not know what sort of characteristics the cases have that arise in the NHS.
343. This is very important. Picking up on something Dr Brand said, you produce your catalogue of horrors every year to frighten GPs into behaving better, which I think is a flippant point but actually is a very real point, GPs do read your report and do get shocked into thinking twice about whether they should visit kids with temperatures. Are you saying then that hospital trusts and health authorities do not have any similar reporting mechanisms?
(Dr Green) I am not aware of any. There are some reports. I know of one that looked at blood transfusion that came out from the Blood Transfusion Authority that looked at how mistakes were made in the administration of blood. Those sorts of reports are extremely valuable because they identify where the chain breaks down. Often medical accidents are not just one event, they are a chain of mistakes. There may be checking procedures and often are system failures where you can actually put into place something relatively simple to prevent that happening again.
344. So you would recommend that this Committee push for that type of information to be available from the NHS?
(Dr Green) We would be very enthusiastic to see that. We would be very happy to share our data with the NHS but, as far as I am aware, it is not forthcoming.
345. That is very helpful. Could I just go on a bit with the GMC, if that is okay, Chairman. Can I ask what percentage of cases currently come under the three headings of conduct, performance and health when you are investigating cases? Do you have a break down of figures?
(Miss Nisbet) I will write to the Committee with detailed figures but, very roughly, of the 3,000 complaints that we had in 1998 I would guess that probably about 150 would have been health, about 20 or so would have been potential performance cases and all the rest would have been conduct, if they were anything at all. There are a large number of letters which it is difficult to know what they are about. If the conduct is the default category, if you like, the numbers of health and performance cases are much smaller.
346. I find that extraordinary because I would have thought that the number of doctors who are under-performing must surely far outweigh the number who actually commit some ghastly error of conduct.
(Miss Nisbet) There are two points. The first thing is that the GMC's performance procedures are still very new. They come into being if there is a pattern of performance that is causing concern and that pattern must consist of events that happened after 1 July 1997 when the legislation was introduced. So all the bits before that are ruled out. In fact, what we have found is that it has taken a long, long time for these patterns to build up. You are quite right, the number of complaints that are presently in the system on the performance procedures beyond screening is just under 20, it is very, very low. The number that have gone to the full Committee on Professional Performance so far is only two, although there are some more coming up. It is just beginning. At the screening stage it is the same screeners who will say "is this primarily a performance case or is this primarily a conduct case?" I think it is fair to be open and say that some cases that have gone down the conduct line in the past which in the future may well come down under performance because they will be after the starting date.
347. I do find that quite extraordinary and I think we need to look into it a bit further. If you look at the chapter of horrors that the MDU produce it is quite often GPs failing to diagnose malaria or GPs failing to make an appropriate referral fast enough or failing to phone somebody up with an abnormal smear report, or things that are clearly wrong and need to be brought to book but hardly performances of conduct. Surely these are under-performance rather than bad conduct? Those must far outweigh in terms of numbers the ones who actually do something that is criminal or grossly unprofessional.
(Miss Nisbet) It may help you, although it confuses the issue even more I confess, if I say that by far the largest category of conduct cases is about aspects of care and treatment, something like 60 per cent are about some kind of thing about treatment. It really is a judgment as to whether this falls into the pattern that causes a concern about competence now or whether it is a series of events of what happened in the past that were so bad that no reasonable practitioner could have done that. Quite a lot of those go into the conduct.
348. How do your conduct procedures in that case lead the doctor to improve their performance? If he goes down the conduct route, and therefore potentially could be erased from the register, that is hardly a very subtle way of dealing with a doctor who is simply under-performing. The question I wanted to ask was Professor Thomas talked about being able to suspend a doctor from the register for poor performance. What happens to a doctor who is suspended from the register for poor performance because in theory they are remediable but how on earth do they become remedied if they have been suspended from the register?
(Professor Thomas) As Isabel has suggested, from the numbers of cases that have gone through the performance procedures at the present time we are on a learning curve. The first cases that came through were very severe. There are cases going through currently where there is clearly more scope for remedy. The doctor may have conditions or may be asked to undergo a period of retraining and that retraining will probably be undertaken in conjunction with the post-graduate deans or a similar person in their region, so that when they come back before the committee on professional performance a year later there is evidence of how they have attempted to alter their practice, how they have tried to rehabilitate. Similarly, there may be evidence that actually they are beyond rehabilitation and, therefore, the suspension would simply be extended. If performance becomes more like conduct in terms of doctors applying to be put back on the register it may be that having gone through this process on one or two occasions the doctor may decide not to attempt to have the suspension overturned or not to undergo the process of rehabilitation. Although the numbers are small there has been an exponential increase in the last few months and I think that figure of 20 will not stand for very long. I am actually one of the two case co-ordinators. I am the case co-ordinator for performance cases by and large and we are seeing a higher proportion of cases now coming through where they are being worked up. It is one of the problems with this exception reporting and it is in many ways one of the reasons why the President, who is a reforming President and a progressive President, has been trying to bring the medical profession with him in relation to the process of revalidation because it is clearly not adequate to reassure the public to wait for cases to be reported. Under the Medical Act we are obliged to have a pattern of behaviour. We cannot take one or two errors or misdemeanours forward under the Medical Act and say that there is an issue around performance. We do go out to seek evidence. If we think that there is something suspicious, if the medical screener is concerned or the Preliminary Proceedings Committee is concerned, we may often telephone the trust or go back to the health authority to try to find out more about the doctor. We are now more in the business of seeking further evidence to actually try to build up our own case on a performance issue. The time bar of July 1997 at the moment is imposing limitations. I think the performance figures will shift.
349. I think, Chairman, the reason why this is such an excellent session is because we are actually beginning to tease out all sorts of problems and difficulties in the complaints procedure. It is another example, I think, where there are obviously gaps and there are obviously possibilities for ad hoc decisions and possibilities which could slip through the net.
(Professor Thomas) Yes.
350. Who is responsible for retraining the under performing doctor who may be redeemable? Who is responsible for re-equipping that doctor to ensure that he has met with the standards that we would require of him? Who is paying for all this? My understanding is that once a doctor goes into that approach, firstly it is almost impossible for the regional dean to make available proper retraining. There is no properly accredited pattern of measuring performance yet and there is no logic. I have been involved in this in my health authority in the past with a doctor who was under performing and it really was a nightmare because there was no structure in place to allow this to happen properly and the whole thing fizzled out in my opinion with the wrong decision being made at the end. Specifically there was no structure, there was no accredited mechanism, so how can we reassure the public that under-performing doctors will be retrained to a higher standard if there is currently no mechanism to do so?
(Professor Thomas) I would like to leave the financial issue to Isabel because that is more relevant to her. The issue of the tool that we use to assess a doctor's performance, having only had a small number of cases go through the process, has been extremely well worked up. Under Dame Leslie Southgate there has been an enormous amount of work undertaken in all of the specialities and I, myself, have been involved in pilot assessments where we had lay assessors, local assessors and took a doctor who was good enough to volunteer themselves through the process to test the tool. Clearly as we have real cases going through we will test the tools more stringently again but I think that our mechanism for assessing a doctor's performance, it is such a large process, it involves a day spent in the doctor's place of work, a day spent in another place where the doctor is interviewed by colleagues, they are interviewed by people they work with
351. Can I be clear, they have been suspended from the register because they cannot practice?
(Professor Thomas) That is the process they will have gone through before they are suspended. I agree with you once they are being rehabilitated it becomes more difficult if they are suspended. Those cases where there is clearly scope to remediate the doctor are more likely to have conditions attached to their registration where they will be able to work with a specific team, with specific doctors, and they will go back at regular intervals and there will be some supervision but clearly that has resource implications.
352. Who is paying for it?
(Miss Nisbet) my understanding would be that the assessments are paid for by the GMC. If there was a condition that the doctor got help from his post-graduate dean, and underwent training, then certainly the GMC would make sure that happened and it did not fall down a black hole and would make contact and get continual feedback. I would expectand if I find out differently I will write to the Committeeit is part of the post-graduate dean's job. Now if you ask me who would pay for the doctor to attend particular training courses, I suspect the answer is the doctor.
353. But if he has been suspended he has not got an income.
(Miss Nisbet) Exactly.
354. You are expecting him to have no income and pay for his own retraining to the satisfaction of the GMC. It is a nightmare, is it not, from any sensible way of sorting out performance? If as a Committee we really are going to look at under-performing doctors and how we can sort that out, then a large element of that has to be retraining, reaccreditation, properly funded and resourced to ensure that when they are back on the register they really are up to the standard we want of them.
(Miss Nisbet) My point, Chairman, is where this fits in with the proposal for revalidationand I do think in most cases that loop would happen, one hopes, with the initial feedback for revalidation and before it came to the GMC's performance procedures at allyou are quite right to challenge us to say that once it has come, however, there still may be some that are remediable and we make it difficult to do the remediation. I do understand there are gaps there. I would also accept the view behind your initial question that the relationship among our three procedures is not intuitively obvious. There is a whole question of whether we should accept that we are historically in three tunnels, health, conduct and performance, particularly between conduct and performance, whether there might be some looking in more first principles terms and how these relate to each other. That is my interpretation of the expectation that we should be beginning to think about that.
Chairman
355. If I could just say that Dr Stoate was as confused as I was about that.
(Dr Green) I think you have raised a very important point about performance and retraining and I wonder whether I can just draw attention to the fact that the regulatory bodies and the functions are there essentially at the top of the tree. I think the introduction of clinical governance and all that goes with it, which of course is the Government's opportunity to improve quality and poor performance, is part of that, that has been devolved down to local level, to PCGs and trusts. There is the opportunity, as Dr Tomkins said, of picking up people at an early stage when they are displaying dysfunctional behaviour and it is local regulations and local remedial help which is going to be important. You are absolutely right, that is going to require resources and it is going to require some investment. We know the clinical governance performance procedures are going to be introduced without any additional resources.
Dr Stoate
356. My final point, Chairman, therefore, is simply to say that no doctor is going to put his hands up or her hands up to poor performance if they do not feel as though that will be taken seriously with some reasonable possibility of being reaccredited. My worry is there are a number of doctors out there who are employed, they know they are under-performing and they are frightened stiff of admitting they are under-performing because what will happen to them is they will disappear down a black hole either through the GMC regulations or possibly through some clinical governance mechanism which has not even been written yet. If we are going to tackle poor performing doctors, we have to make it possible for them to admit they have got bad performance, look at the mistakes they are making, look at the gaps in their knowledge and follow the mechanism to put that right.
(Dr Green) I could not agree more. I think it is going to be one of the most difficult aspects of clinical governance to form mechanisms which are supportive rather than punitive and help doctors confront their deficiencies and confront their lack of skill or problems of attitude, and that is going to be an extremely difficult but very necessary part of the introduction of clinical governance.
Mr Austin
357. Can I just clarify something, I hope I misunderstood what Miss Nisbet said in her evidence. If a complaint comes to you and it is being dealt with under the performance issue which appearssomething that maybe happened in 1997 or 1998on the surface to be an isolated incident but there then emerges a pattern of similar things which occurred before 1997, are you saying they cannot be taken into account?
(Miss Nisbet) Under the performance procedures I am saying that because the legislation is not retrospective. It means that in practice it will not pick up until there is time to establish a pattern after the beginning of the time of legislation.
358. Even if they became aware of similar incidents which might have occurred prior to the Act, you would not take those into account?
(Miss Nisbet) In performance procedures, we would certainly consider whether to act under the conduct procedures and in practiceand I realise this shows how loosely related they are, I accept thata judgment may be made that it is better to pursue a particular case under conduct because a lot of the events gave rise to concerns before the starting date. I do understand that is an unsatisfactory transitional position but that is what it is.
Mr Gunnell
359. If I could just return very briefly to Dr Tomkins and the question or the case that Mrs Wise raised. In that case the patient definitely brought a claim against the doctor where he admitted negligence and when that claim was settled she believed that the information would automatically become circulated so the doctor's admission of negligence would be known. That obviously was not passed on because he continued to, I guess, make similar mistakes or certainly he continued to operate and that led, as Mrs Wise said, to unfortunate incidents. Now how would it be that that information would get out if you do not pass on the results of claim cases where there is admitted negligence. Ought not that to be referred to the GMC where negligence has been admitted which has led to a particular claim being settled, because the lady concerned was not actually concerned about the financial value of the settlement, she was concerned that highlighting her case would actually be likely to mean that it was less likely others would suffer similarly? Do you not have a duty to pass that information on to the GMC?
(Dr Tomkins) Currently there are no arrangements which require a body settling a case, be it the NHS or the defence organisation, to pass on information about settling that claim to the regulatory body. I do not know the case you describe but the circumstances that you describe I think illustrate the difficulty with the civil justice process because, as I said earlier, it is aimed at providing compensation whereas what this patient wanted was some assurance that what happened to her would not happen again. I do not think that the claims procedure is the best way of achieving that, nor is it designed to achieve that. There are other mechanisms, which we have set out in our written evidence, which are better suited to that. As to whether or not when a doctor admits negligence in the context of a civil claim there ought to be some automatic duty on the body indemnifying that doctor to tell the regulatory body, as I said I think that might well be counterproductive because it might mean that in those circumstances, as is very often the case where it is not absolutely clear there has been negligence because there are complicated issues of liability and causation, the doctor will be very disinclined to admit negligence, the doctor will be very disinclined to agree that this case will be settled, which means that more cases will be fought and more patients will have to go through the long and arduous process of taking their case to court and proving there has been negligence. I do not believe that is in the interests of the patient.
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