Examination of witnesses (Questions 400 - 419)
THURSDAY 1 JULY 1999
PROFESSOR HILARY THOMAS, MISS ISABEL NISBET, MISS MANDIE LAVIN, DR CHRISTINE TOMKINS and DR STEPHEN GREEN
400. You are satisfied with the law of consent arrangements as they stand at the present time?
(Dr Tomkins) I think it strikes a reasonable position in that in other jurisdictions it is necessary to provide the patient with details of every known complication that in a way could overwhelm with information which in some ways is less helpful providing them with the sort of information which they might reasonably expect to be given in the particular circumstances of the case.
401. Could I ask another question. We have picked up in the short time that we have taken evidence that patients are often mystified, and relatives are mystified, by not just the complaints procedures and the various different directions in which they can go but also when they have taken a certain direction what subsequently happens. I am particularly interested in the views of the UKCC and the GMC. What are your views? Do you feel that patients, relatives, people who have made representations to your bodies in particular are kept properly informed of the various procedures that are happening, the various processes that have to be gone through? Do you feel there are improvements that might be made to ensure that people understand more fully the processes that take place? You have got the picture that perhaps Members of this Committee, including our medically qualified Members, do not fully understand some of the processes of the GMC so clearly patients also may have difficulties.
(Miss Nisbet) Chairman, we feel that there is room for improvement in what we do and we are looking at that now. At present if somebody writes us a letter we will acknowledge it within five days and then we tell them when key milestones have been reached. We know what the milestones are but they do not necessarily understand. To be frank with the Committee, there is some haphazardness in our regularity in giving people holding advice, that we are still investigating or our solicitors are still doing some inquiries. We are not happy about that and we are going to try to improve. I fully sympathise with the spirit behind your question which is not just within any of the one procedures but their relation to each other is a great mystery to many people. I do not think it is right to expect the public to pick its own way through this maze. It is a duty on any organisation that happens to be the first port of call to help to shunt somebody or to advise them how they might go to the right place to follow their concern. We are trying to improve our links with other bodies that receive complaints. The GMC is taking an initiative in setting up discussions with the Department and with the Ombudsman's office to try and get more exchanges of information. We already have close links with UKCC in that way but I am not satisfied that it is good enough yet.
(Miss Lavin) I would support what my colleague from the GMC has said. One of our concerns is that only about 20 per cent of all of our complaints come from members of the general public. We do immediately acknowledge any complaint and of course the complainant, the patient, is a key person in terms of our investigation because often they are in possession of many of the documents and material that we need to access as evidence. We do try to keep people informed regularly and certainly if a decision is made at committee they are told about it. As things stand at the moment they are not given reasons. We are scrutinising that and we have got some project work under way so that reasons are going to be given for every stage of our process. That is going to be a very important development in terms of our openness and our transparency and how we stand up to public scrutiny. I suspect that a lot of people who are currently dissatisfied with the arrangements that are in place might actually feel reassured about it.
Mr Amess: Chairman, I am just sitting here trying to judge if the witnesses this week have been more rigorous and effective than the witnesses last week but perhaps in closed session you will be able to tell me privately if they have. Three questions. I wonder how you will relate to the Commission for Health Improvement? What changes would the Medical Defence Union like to see made as part of the developing clinical governance to improve practice in relation to adverse incident reporting? The third and final one, and I do apologise, Chairman, if this has been covered: as an MP I find, and I do not care if they sue me, the Solicitors' Complaints Bureau an absolutely complete and utter waste of time because of their vested interest. I apologise if I have missed it, Chairman, and you have torn them apart, it is all very well for me to swan in. Do you think you are effective in comparison to the Solicitors' Complaints Bureau because they have got a majority of lawyers, which I had not understood when I first started to use the procedures for my constituents? I do not know if you have someone monitoring you, everyone seems to be monitored these days. Do you think that you are effective in terms of meeting the general public's anxieties on various matters to do with health care at little or no cost?
Chairman: We have touched on self-regulation, the last point in some detail, but you may wish to give assurances again.
Mr Amess
402. Forget that one.
(Miss Nisbet) I wonder if I could start with the Commission for Health Improvement. It obviously has a different role from the role of the GMC but we see it as a complementary role. It is vitally important that we and the Commission should be able to talk to each other in a sensible way about concerns that arise from either of our distinctive roles at an early stage. It is not just a matter of having diplomatic relations and having good relations at the top but actually working relations. We are keen to take part in discussions which have already started about how that will work out. In particular, one of the channels of work that the Government has said the Commission will be carrying out is its so-called trouble shooting role as well as its regular visits and monitoring, following up particular concerns. Sometimes those will be managerial or systemic concerns but sometimes if they go round particular departments they might be told "in fact, we cannot do anything to put this right because this is all about Dr so and so and until he retires there is nothing we can do", or something like that. That is the kind of thing, a deep rooted concern, which we should know about and be able to act on. Similarly it may work the other way around as well. That is all I wanted to say about the Commission.
(Miss Lavin) I would just like to add that I think it is crucial that we interact and interact in a very real way with the Commission for Health Improvement. I think that means on the ground being able to share concerns about particular organisations with the recognition that we come at it from a very one-sided angle. At the moment where does the regulatory body go about somewhere that it seems to be receiving an inordinate amount of complaints about? Does it mean they are very good at reporting to the regulatory body and they have got very good quality systems in place or does it mean that there is a problem? One of the things the UKCC has been doing recently through its Preliminary Proceedings Committee is when it finds itself in the position of closing a case it is actually writing letters to organisations to find out if the systems failures or the difficulties that might have led to the practitioner being reported have been addressed. We have had a variety of responses to that. I will certainly admit before this Committee that it is stretching our legislative remit to the limit on some occasions but in terms of protecting the public we get some very positive responses which we can often share with the complainants that they have never seen before. I would also add that I think we need an explicit mandate in statute to be able to share specifics with the Commission for Health Improvement so it is really going to be an effective quality assurance agency.
Chairman
403. One question was addressed to the MDU.
(Dr Green) This is about the adverse incident reporting and clinical governance?
Mr Amess
404. Yes.
(Dr Green) The MDU supports the introduction of adverse incident reporting. What we do know about it at the moment is that it is somewhat variable throughout trusts and really has not existed in general practice to any degree that I have heard. The NHS Confederation did undertake a report, "Clinical Risk Management: Making a Difference", where they looked at incident reporting in trusts in England. What it showed was that there was huge variability in the numbers of reports varying from very small numbers up to 5,000 in a year and that trusts were again very variable to the extent of what they actually did with that data. Clearly it is no good just collecting data if you do nothing with it. Our view would be that there needs to be some form of standardisation of the way incident reports are collected because there is also a great variation in the opinion of what actually constitutes an adverse incident report and what should be reported. There are difficulties in what is collected and how it is collected and clearly there needs to be some sort of standardisation of the data that is produced because then you can have comparable results. At the moment I do not think that actually exists.
Mr Amess: Chairman, can I just correct something I said. When I talked about last week's witnesses, of course I did not mean that, those were the victims, it was the week before when we had the Department of Health officials as witnesses. So I hope the record is now clear.
Dr Stoate
405. Can I ask the GMC, how do you monitor the performance of practitioners? Not the ones who are just failing or the ones for bad conduct, how do you monitor the overall performance of practitioners?
(Professor Thomas) Without the introduction of revalidation I do not see how we can. We are dependent on events being reported to us, so we have no remit at the moment to go out and look at individual doctors.
406. Basically you do not at the moment at all? How is that going to change with revalidation or reaccreditation?
(Professor Thomas) The implementation of revalidation will be something which the GMC can undertake but it will be the GMC that is in the driving seat in terms of determining how revalidation works, its configuration, and bringing the professional and other interested parties with us. The implementation locally is likely to be more in the department of the colleges. The quality assurance that we feel is going to be essential to ensure that revalidation works will have to be undertaken through external review, peer review and lay review. Clearly it is going to be very important to obtain public confidence. There will be very important lay input in the whole process.
407. Your role would be with revalidation not to run the system but to set it up and make sure the standards are right?
(Professor Thomas) And to be the body that is reported back to about whether the doctor is actually going through the process and complying with that.
408. Can I just ask the UKCC the same question: how do you monitor the performance of your members?
(Miss Lavin) I think the practical answer is that we do not. What I can say is we have a three yearly re-registration cycle which has with it a continuing professional development requirement in terms of maintaining a professional profile and meeting a minimum number of hours of practice over the previous three year period. That is the point at which it is going to be fully effective. I do not think that provides the assurance that I think you are seeking in your question because we are very reliant on what happens and what employers do in terms of monitoring poor performance and picking it up at an early stage. My colleague from the MDU made reference to this. Those early alarm bells ringing are often what stops a practitioner ending up before our professional conduct committee, or indeed our health committee I would add. So I do not think we can. Also in answer to the question how feasible is it for a regulatory body to do that at such a distance from such a very large workforce, such a very complex organisation as the NHS, what we can do is set standards frameworks and guidance and assistance.
409. If I can stay with you and just move on to a slightly different area, that is how do your members feel it is possible to monitor the performance of doctors and what do they do, for example, if they are worried about performance of the doctors on their wards or in their practices?
(Miss Lavin) Our code of professional conduct is absolutely explicit about the professional accountability to report concerns. We also have a guidelines document, Guidelines for Professional Practice, which gives more amplification of what practitioners can do if they find themselves in this position. The difficulty I think is seeing how that translates to what nurses actually do when they are worried. I think the reality is that the culture of many organisations does not easily facilitate people coming forward and making concerns known. I think we are getting better at it and I think that practitioners can be more confident to be able to stand up and protect patients but I still think there is room for improvement.
410. What would happen in practical terms then to a nurse who had a real problem with a consultant on a ward? What in practical terms would happen?
(Miss Lavin) There is absolutely no doubt that she is under a duty to do something so do nothing is not an option. In terms of where she might go with that concern, it may well be that her route could be to her line manager, possibly to the Director of Nursing, much will depend on how the organisation operates and whether or not it sets any explicit guidelines about reporting concerns. Many NHS trusts have actually taken on that concern and there is a very clear pathway of accountability. A difficulty can be if the line manager or indeed the senior person within the organisation is the person they have concerns about. We do see cases where people, perhaps guided by their own organisations, actually do come directly to the regulatory body to effect action. We also see cases where people have been raising concerns and nothing has happened. I think that again is a very difficult situation and certainly we have examples where we have removed senior practitioners from the register who fail to act on concerns that have been made known to them.
411. If a nurse came to you, the regulatory body, and said "I am really worried about my consultant on the ward", would you say "go to the GMC" or would you pass the complaint or worry on to the GMC?
(Miss Lavin) It would depend because many of the people that call in to our advice line with a query like that may choose to remain anonymous to us. We would certainly urge them to do it themselves.
412. To go to the GMC themselves?
(Miss Lavin) Yes, because they are the people who are most likely to have the evidence base on which to act. They have to address it within their organisation because if that person is currently practising then they are currently exposing patients and clients to risk. So their own organisation has responsibility. If they feel they cannot do that they must come to the GMC. If they are not prepared to do that and they would like us to take it forward, certainly I can think of a very recent case where I advised the practitioner that they must provide to us as a matter of urgency all the information they have collected. In the mean time, in fact, what has happened is the problem has been identified by somebody else and a collective view has been taken within the organisation and the Director of Nursing has been approached and action has been taken and the doctor has been suspended. I cannot actually think of an example where the UKCC has directly reported a doctor to the GMC, us being the complainant. Certainly we have cases where we investigate the nurse and we also identify the doctor may be at fault and we pick the phone up to the GMC to check that the doctor has been reported to them. I would say in nine out of ten cases that does happen.
413. Clearly there are problems. We hear from nurses from time to time, and I am sure all of us have experienced this, where they have worries but they are worried about the victimisation within the trust, their career might be on the line, the trust managers might say "Do not make waves. How will it look in the local paper when this gets round?" There are all those issues around, also the pressures on your nurse members and midwife members not to report. What happens? Who do they trust where clearly there is a worry which one of your members has about what might happen to them if they blow the whistle?
(Miss Lavin) I think we are moving into a new era. There has been public recognition of this and, indeed, legislative protection for those people who find themselves victimised and dismissed as a result of raising concerns. I think there is no doubt that media and patient groups play a key part in the changing approach of nurses to this. The whole foundation of professional accountability is that you have a duty to be a patient's advocate and the code very clearly spells out those professional duties. I think it is fair to say before this Committee today that I think the culture of some organisations makes that very, very difficult. I do not think anybody should under-estimate the trauma of the experience of reporting a senior colleague within the organisation firstly and then ultimately to a regulatory body. Certainly our advice when people find themselves in that position is that they should get some professional help from their professional organisation or trade union to see them through the process.
Audrey Wise
414. I was going to ask whether there is any monitoring done from the point of view of protection? If a witness gives evidence to this Select Committee, for instance, sometimes it happens that a witness gives evidence which is not complementary to his or her employing organisation, we would have a duty to protect that person. We have on one occasion had to exercise that duty when they adopted quite a threatening attitude to the person employed which we could see through. Is there anything that the UKCC or the GMC can do to ensure protection for a person who does carry out his or her professional duty?
(Professor Thomas) If a doctor were guilty of turning a blind eye, rather analogous to the Bristol scenario I suppose, to the knowledge that a colleague was under-performing or was potentially guilty of serious professional misconduct then that doctor would lay themselves open to the GMC procedure.
415. The question was a bit the other way round. Suppose somebody does carry out their professional duties, is there any mechanism in anybody's hands for ensuring that person will not be victimised?
(Miss Nisbet) I think the answer is no direct one. Doctors have similar pressures—I know there are some differences—particularly more junior doctors are very concerned about the effects on their careers. We get telephone calls from worried doctors at all levels. First of all we tell them "now we know what you have told us we cannot un-know it, so this is what we are going to do" but encourage them to talk to at least one other person. Our good medical practice is clear, you must take action, there is no option, it is like the UKCC. It gives a lot of examples: "if you cannot talk to your medical director or your chief executive, talk to a colleague, talk to a colleague from another hospital, you must talk to somebody". What we try to do is to put them in touch with sources of peer support but that is an informal arrangement, it is not a systematic arrangement.
416. One thing that strikes me is that if somebody does carry out the proper professional measures then the person or body which then victimises that complainant may not be directly at any rate another doctor, it may be done via a chief executive or whatever who does not have responsibilities to your organisations. Would you care to consider whether there could be some protective mechanism for somebody against victimisation? You obviously have not considered that but would you care to? Do you think that it could be relevant? Is it fair to place a duty and not provide some protection?
(Miss Nisbet) Any judgment made about a doctor will be made in the knowledge of how the NHS was managed, for example, if the doctor was in the NHS. The committee is aware of new guidance issued by the Department of Health in terms of the employment of NHS staff to make it clear that there is a duty on the employer not to victimise somebody for raising legitimate concerns and suggesting how it should be done. It would be in the knowledge that was how the management of the service was supposed to be carried out and also any changes to the law. That is about as far as it goes.
(Professor Thomas) There is no perfect system. Clearly with doctors moving in their careers you cannot guarantee that the word will not get around that they are a difficult individual who reports poorly performing doctors. What we can only hope for, I suppose, is a culture change that makes it more acceptable. I think clinical governance will be one of the keys to this because the management responsibility in relation to clinical issues will help chief executives who are not medically qualified to feel that they have a responsibility to support the doctor and ensure that they are not at risk for having reported events.
417. This is not to open a huge discussion, you may want to answer in writing, but I have wondered for a long time why the UKCC's duty relates to professional misconduct and the GMC's duty relates to serious professional misconduct which suggests to a lay person like myself that a doctor has got to be worse than a nurse before anybody will take action, that there is a higher standard being imposed on nurses and midwives.
(Miss Lavin) I would just like to clarify that. In fact, what we look for is misconduct. Misconduct is defined as "conduct unworthy of a nurse, midwife or health visitor" which is a bit different from the GMC's rules. Conduct unworthy is a very broad definition of misconduct and does not stretch just to something that might happen within professional practice because clearly people might be convicted on matters in their personal life that might give them quite grave concerns about their clinical practice and the risks that they might expose patients to. Going back to your previous point about protection of individuals, I think the majority of our practitioners would turn to a professional organisation for that sort of assistance. In extreme cases we do have a Nurses' Welfare Service which is a charitable trust that can help any of our registrants who find themselves in dire straits and distress. We can make that service available to people, although it is primarily geared towards helping people through our conduct procedures. With regard to protection of the individual we do also refer people who come through our help line who do not want to identify themselves to organisations such as Public Concern At Work who are very experienced in assisting people who find themselves in real moral dilemmas about reporting people or whatever.
(Miss Nisbet) There is a history to the development of the phrase "serious professional misconduct". There have been various versions of it before. Under the Medical Act what it is intended to convey is conduct which calls into question whether the doctor should continue to practise without restriction. It is not just whether he should be struck off or not but if there is anything suggesting that his practice should be limited in any significant way then that would potentially be serious professional misconduct. The intention is not to have a higher threshold than some other phrase, it is actually to do with the development and the understanding of the phrase. I do understand that it raises that question.
Dr Stoate
418. Are there linkages between the UKCC and the GMC? Do you actually work together at all and, if so, is it on a formal or informal basis?
(Miss Nisbet) Miss Lavin and myself and our colleagues in the dental and pharmaceutical bodies are going to be meeting regularly starting very soon. Also there are more formal meetings with the heads of departments and also with the Department of Health.
419. Do you share information on specific cases?
(Miss Nisbet) We can do, yes.
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