Examination of Witnesses (Questions 20
- 39)
THURSDAY 2 MARCH 2000
PROFESSOR GRAEME
CATTO, MR
FINLAY SCOTT
AND MS
SUE LEGGATE
Mr Austin
20. It is the general principle of whether the
health authority should be aware of that.
(Mr Scott) I understand that and if I could crave
your indulgence to illustrate the principle by talking about the
particular. When Dr Shipman was convicted in 1976 the police notified
us, as they were required to do. It is absolutely plain from our
records that his subsequent employer, his immediate next employer,
knew about the conviction, knew about the drugs element, and in
fact made representations to us that he be allowed to continue
in practice, so his employer knew about the convictions and the
drugs. Dr Shipman subsequently moved into general practice. We
were not notified of that because the arrangements generally do
not enable us or require us to keep track of the movements of
doctors. The practical implications of it would be just un-doable.
Nevertheless, we know that his partners in general practice were
aware of the drugs convictions and the drugs issues. When he subsequently
moved into single-handed general practice again we had no means
of knowing that had happened. The system operates rather on the
reverse basis. We encourage health authorities and trusts on first
engaging a doctor to check registration with us. For reasons I
understand perfectly well, the health authority made no inquiry
at the time about Dr Shipman and consequently, because we did
not know that they had a new relationship with him, the information
remained on our files and was not communicated to them. Much of
what has been said about this has misunderstood the relationship
as it operates day by day. Our position is quite clear. We want
to co-operate with the health service. We positively encourage
employers to check registration with us. What we have sought is
clarification in the law so that there can be no doubt about the
circumstances under which we are free to do that.
Mrs Gordon
21. What steps have been taken to integrate
self-regulation with the Government's other quality initiatives
such as clinical governance and the commission of health improvements?
(Professor Catto) At the recent Council meeting we
did look at this and we have agreed that we would wish to pursue
this very rapidly indeed. We wish to undertake a fundamental review
of all our fitness to practice procedures, recognising, as we
said at the beginning, that that is one part of our overall remit:
we deal with education standards and maintaining the register.
Fitness to practise is critically important, we have to get it
right, but it is one component part. Second to that we also wish
to look at the way in which the GMC itself responds to that. There
are two issues: how do we integrate with the NHS, and we have
approached the Secretary of State to see how best can we do that,
and secondly what effect does that have on our overall commitment
to fitness to practise?
(Ms Leggate) The other bit that one would add to that
is that, as you know, the GMC are consulting and working on the
proposals for the revalidation of doctors so that there is a periodic
revalidation. As far as the bulk of doctors, ie those doctors
who are working in the NHS, are concerned, revalidation will work
properly only if it works in harmony, hand in hand, with the Government's
proposals that have come out in Protecting Patients, Supporting
Doctors around appraisal and around governance. For all the
reasons of time and resources and sense it needs to be based around
the local processes working properly to be able to feed into the
national process of revalidation. I think close working has to
be absolutely axiomatic to it.
22. Do you think that joined-up thinking will
come about?
(Ms Leggate) Certainly the responses that we are getting
lead us to think that as the GMC. I chair a patient representative
group on the GMC which is newly set up around revalidation. There
are a lot of very powerful consumer groups on that who are going
to want to know the reason why either if the GMC fails to deliver
it or the Government fails to deliver it. I shall be encouraging
them to do so.
Dr Brand
23. Can I return to the lay membership? I served
as a medical member of a Service Committee for a number of years.
There is a lay majority on that those committees. But my impression
was that the doctor members were much harder on doctors than the
lay members were. I must congratulate the GMC for the distance
that they have moved in accountability and openness and I am not
criticising the outcome of your deliberations. What I am worried
about is the public perception of a profession policing the profession.
As Ms Leggate has said, there are so many roles the GMC has got,
education clearly is firmly a professional matter, there is accountability
to the Secretary of State, and that is something the profession
should do, and the basic nuts and bolts of registration, why should
the profession not do that? But when you are talking about professional
accountability, is not the public entitled to have more public
accountability than a professional majority? I cannot understand
the GMC's objection to having a lay majority. I would like you
to explain what is so threatening about the concept of having
a 51 per cent lay membership of the General Medical Council.
(Professor Catto) Can I start answering that and then
Sue will come in behind? The answer is nothing inherently. If
I take issue with some of the points you started off with, I am
not sure that education is purely a professional matter. I think
there is a lay input in education which really is very important.
We need to see what the GMC has been doing over the last few years
as a continuum. It may start off with undergraduate education,
but the lay input into the Education Committee is of fundamental
importance. What is taught there and the way in which that curriculum
is laid out leads directly into good medical practice. What we
are hoping to do here is to put all the problems we have been
discussing this morning into context. Increasing the lay proportion
of people within the GMC is a topic that we will come back to
very soon. Many of us I think would wish to see that happen. It
is important that we do not get ourselves locked into the proportions
and 51/49 per cent. There may well be occasions in my view when
a lay majority would be absolutely important, for some of the
fitness to practise cases. It is less clear, as you said yourself,
that that is the case for registration.
24. Do you not accept that there is a public
perception that as long as there is a professional majority policing
the affairs of the profession you are going to be open to charges
of cosy relationships between professionals?
(Professor Catto) Yes, I personally do, and I think
that is why in the fitness to practise procedures we should leave
ourselves flexibility to allow that not to be seen to be the case.
25. But do you not accept that from a public
perception point of view the 49/51 proportion is actually absolutely
vital? That is not splitting hairs in talking about increased
representation of one side or another. It is what the public perceive
to be the role of a regulatory body.
(Professor Catto) If we are talking about the fitness
to practise procedures there may be a case for making a very much
larger lay majority in certain cases, not just the 51 per cent,
so I think it is important that we get fitness for purpose right
rather than get involved in particular percentages. There are
two aspects to this. We have got to reassure the public; that
is our first and most important duty without any question. We
are totally on the same side there. There is a need though to
ensure that we take the profession with us. There are models in
other countries where that linkage has not been as strong as it
has been in Britain and it has not worked to the benefit of the
public. We need to ensure that patients and the public, the profession,
the Government, are together on this issue. The GMC is in a sense
the glue in the centre of that.
(Ms Leggate) On the point of fitness for performance,
and let us put education and standards aside because I still think
that the lay member has got a huge part to play—
26. I do not disagree with you.
(Ms Leggate) On fitness to practise I hear lots of
arguments. I have sat on some fitness to practise hearings myself.
There is often just as much dissension and difference of opinion
between the medical members and between the lay members as groupings
as between a lay/medical split. You may know yourself. You get
for instance a psychiatrist who may be up before a Fitness to
Practise Procedures Committee who will say, "We have got
two medical members on it who are GPs. What do they know about
what I am doing?"
Chairman
27. We have two GPs on this Committee who spend
most of their time arguing with each other.
(Ms Leggate) You will know exactly what I mean. I
think that the numbers of lay members need vastly increasing and
I think we can debate that.
Dr Brand
28. I am sorry, Ms Leggate. You are not picking
up my point. It is not so much the outcome of the deliberations.
(Ms Leggate) As the perception.
29. In relation to the proportion. It is the
public perception. Can you not accept that that is a very important
issue? Would you not accept that there is also a bit of a side
effect to the current majority of doctors, that the GMC is feeling
somewhat threatened by everything that is going on at the moment
and is perhaps over-reacting to some issues because they feel
threatened as professionals and they want to be seen to be whiter
than white, whereas with a lay majority they might be able to
justify some of the very sensible screening decisions that would
allow them to go back to work after suitable treatment using the
medical model rather than the disciplinary model? I am beginning
to get all sorts of reactions from the GMC which I feel are the
result of a body that is feeling somewhat embattled. The idea
that doctors should be suspended if they are under investigation
by the police. Under that system I would now be suspended because
the Hampshire Constabulary is investigating something they have
not told me about yet. I think it is quite reasonable to suspend
people when they have been charged with a particular offence,
but for you to move along the way which would be much further
than a sensible lay person would do because you want to be seen
to be hard on the professionals because you are professionals
yourselves, I find that worrying.
(Ms Leggate) I do not disagree with you at all. I
do not disagree with you about majority lay memberships. I think
it is a discussion that has to be had; I know which side I would
come down on. I spend a lot of time at the GMC trying to educate
the medical profession that consumers do not bite.
30. Hard work.
(Ms Leggate) And that there is an extremely useful
and valid partnership which is beginning to have effect. It is
pushing on an open door in many cases. For instance, the chair
of the Preliminary Proceedings Committee is a lay member. The
chair of the Committee that struck Shipman off in the end was
a lay member. The lay majority will come, I am sure, on fitness
to practise. I think one should differentiate between the GMC
as a body that does a lot of things and this important area of
fitness to practise that not only needs to increase its lay membership
but also needs to increase the number of people on it who come
from outside the actual GMC Council itself. Both those will be
reforms very much for the better.
(Professor Catto) Could I pick up one issue on procedure?
It is not the case that the GMC is running scared on these issues.
The reforms that we are talking about today and were put in place
by Council or suggested by Council in February are part of the
continuum. Much of what is happening now started in the late 1980s.
It started with the educational process. It has gone through to
medical practice. The speed of change in medicine, as in everything
else, has accelerated and the GMC needs to be aware of that. There
is not going to be a slackening of the process. It is not in response
to these particular problems that have arisen over the last few
months. They are part of the process and not the cause of the
process.
Mr Austin
31. Could I follow up a point that Dr Brand
made? I appreciate that there is no automatic suspension when
a doctor may be under investigation on complaints but you do have
the power to suspend in those cases, do you not?
(Professor Catto) This is a technical answer so I
will ask Mr Scott to answer.
(Mr Scott) I will try and be brief, Chairman. We do
have the power of interim suspension. We can suspend a doctor
on an interim basis pending appearance before the Professional
Conduct Committee. Because of the way the law is framed it can
only be used in particular circumstances. More to the point, it
cannot be used in other particular circumstances. It can only
follow a decision to refer the doctor to the Professional Conduct
Committee. It cannot be used before that decision itself has been
taken. We reported the weakness in our powers in this respect
to the Department of Health last year and we have been working
with officials and now with the Secretary of State to secure change
in the law which would give us a general power of interim suspension.
It would not be tied to any particular stage in our procedures.
If I can clear up a point that follows from what Dr Brand has
said, I have not heard any suggestion that we would want to use
the power of interim suspension just because doctors are under
investigation by the police. The very real issue that arose in
relation to Dr Shipman was whether we could suspend him once he
had been charged. We had received advice from leading counsel
that we did not have that power and that it would be an abuse
of process to try to suspend him. I am aware that there has been
a good deal of off-the-record briefing on this point suggesting
that we were lily-livered. I want to make it clear that we have
not received at any stage any indication from the Department of
Health or from Ministers that they disagreed with the legal opinion
that we received.
32. Could I pursue this because I do not know
whether you are familiar with the case, but if I can take you
back a few years to the case of Dr Khabir, that was the case which
led me to introduce the NHS Amendment Act with the support of
the last government in order to allow a local health authority
to suspend a doctor from working in the NHS. At that time that
doctor was under investigation by the GMC. Indeed there was no
suspension. He carried on working and then it went to the appropriate
committee and the decision was that he should be struck off. He
then appealed against that and then, having lost that, went for
judicial review, then went again to the Judicial Committee of
the Privy Council, and all the time continued to practise. Is
that still a possibility under the present regulations?
(Mr Scott) Again I wonder if I could try briefly to
summarise the position and illustrate that our policies have changed?
When the Professional Conduct Committee decides to erase a doctor
from the register the doctor has 28 days in which to appeal. If
he appeals then the erasure does not take effect until the appeal
has been heard. For that reason the 1983 Act gives us the power
of immediate suspension. The Professional Conduct Committee can
decide, following the decision to erase, to impose immediate suspension
and that takes effect that day unless the doctor goes to the High
Court to seek a review. Until about 1995 that is a power that
was not used regularly, but from 1995 it can be seen that the
proportion of cases in which immediate suspension is used has
increased. It is now a much more common feature and it overcomes
the problem you have described. That is separate from the earlier
problem I was discussing which is the circumstances under which
you can suspend a doctor on an interim basis pending a full hearing.
There are basically two weaknesses in those current provisions.
One is the one I described. It can only follow a decision to send
a doctor to the Professional Conduct Committee. The other weakness
is that when enacting the 1995 Act which introduced the performance
procedures the legislation did not include the power of interim
suspension in connection with allegations of seriously deficient
performance. That lies behind our request to Ministers, and the
Secretary of State has confirmed that we will get this, for an
extended, much more flexible power.
Chairman
33. So you are happy with the Government's response
to that?
(Mr Scott) Very much so.
34. Timescale-wise what are we talking about?
(Mr Scott) We are working very hard with officials
to enable the order to be laid in order that we should have by
the end of the summer a new, more flexible, wider-ranging power
of interim suspension, still used on a selective basis, that will
enable us to act quickly when the circumstances require it.
Mrs Gordon
35. We talked earlier about doctors being able,
if they are suspended from NHS practice, to go into the independent
sector. If I could bring up this point of communication because
we just had a case in my local authority where a doctor has been
suspended, Dr Ponting, and the suspension was around his conduct
in a private hospital where he had the opportunity to sexually
harass women patients but he was also working in the NHS where
he did not have the opportunity because there was a nurse always
present in examinations. That trust, as I understand it, was not
informed of the suspension. It is a two-way street. Do you feel
that if a complaint like that is made that anywhere that that
doctor is working should be informed of what is going on and the
action that is being taken?
(Professor Catto) Yes.
(Mr Scott) Yes, Chairman. There is a three cornered
relationship in these circumstances. There is the GMC which is
the regulatory body; there is the private hospital which has granted
admitting rights; and there is the NHS employer or contracting
authority. We began consultations in December over our wish to
be more communicative when we received a complaint against a doctor
and to be in a position to convey to the NHS and any other employers
that there is a current complaint. I do know that there are concerns
within the private sector that sometimes NHS employers do not
convey information to them and, equally, there are complaints
by the NHS that they do not receive information. That is why in
the letter I mentioned earlier to the Secretary of State we said
that we would very much welcome a clarification. I think the Secretary
of State has it in mind to impose a duty upon us to convey health
information to NHS trusts and to local authorities. We would welcome
a clarification of the law and would feel very comfortable with
the duty if it was a duty that we could commit to discharging.
We think the opportunity should be taken to look also at the needs
of the private sector and other authorities including the police.
36. Do you see the need for a central database
to hold all this information that, for instance, a police or trust
or private sector can get the information from?
(Professor Catto) Could I have a crack at that and
then perhaps Finlay can come in and rescue me. I think it is quite
important that that kind of information is retained. It is clearly
in the interests of patients that that information is retained.
Where we get down to the nuts and bolts of this issue is how does
the GMC link into clinical governance, and how does it link into
the NHS as the predominant employer in this situation and how
do we share that information. A central register held by a single
body such as the GMC or some other authority would have enormous
logistical problems. Most of the information is already available
at the local level. My view is how we integrate the systems rather
than set up a totally separate system which would have enormous
political difficulties.
37. In the instance I quoted, a exchange of
information just simply did not happen and that has got to be
corrected. What would you see the way forward to that?
(Professor Catto) I think, as Finlay indicated before,
we would very much welcome guidance on those information flows.
We ourselves are in no doubt that it is in the patients' interest
that those flows of information are facilitated within the law.
Clinical governance when it comes in at a local level will help
that in a much more practical way.
38. Could I ask once a doctor has been erased
from the register for 12 months, what happens for new information?
For instance, this case was in our local paper last week, since
then at my advice surgery I have had a woman who has a similar
complaint. She said, "I did not complain at the time. I did
not realise it was a serial thing." What processes do you
have in place when further evidence comes to light? Who passes
that on to you? Does it go to you or to the local trust? I would
like some information on that.
(Mr Scott) I think there are two sides and maybe Sue
Leggate will come in here. It is quite difficult to give a general
answer to your question because it would depend very much on the
circumstances, the relationship between the timing of the incident
that is the subject of the complaint and the timing of the hearing
to consider the complaint about which we already had information,
and it will not surprise you to know that we have to look very
carefully in these circumstances at what the law entitles us to
do. I think there is a more general point which I know the President
raised with the former Secretary of State which is the relationship
between our fitness to practice procedures on the one hand and
on the other hand the NHS complaints procedures and also the powers
of the Health Service Commissioner, the Ombudsman. Because there
is very clear evidence, albeit anecdotal, that patients are confused
about to whom they should turn when they have a concern and the
result is that some patients are approaching three bodies and
others are approaching none at all and there is, in our view,
a very strong case for looking closely at how we can better integrate
the respective responsibilities and consequent information flows.
(Ms Leggate) I think that is right. I think what Finlay
Scott has just emphasised is one of the areas where there is huge
amounts of dissatisfaction with the GMC. A lot of complaints are
about the way the GMC handles things. When I first joined the
GMC before I knew too much about it and became institutionalised,
if that is what we get as a Council member, I said I wanted to
know what it felt like to be a complainant to the GMC so I spent
time tracking complaints through and I spent time with the complaints
people and the thing that became most apparent to me is that the
GMC has not decided what business it is in. We know its statutory
business is a regulatory body and it has functions around registration,
but it is not the all-singing all-dancing complaints body and
so it can only deal with those complaints which are likely to
call registration into question, serious professional misconduct,
seriously deficient performance. So people were getting letters
back from the GMC saying, "We cannot deal with your complaint
because it is not serious enough"—in their technical
interpretation of "serious". You and I would say, "How
dare they say that, it made me really upset", etcetera. I
think that is one of the issues that is now being taken forward.
It has to be taken forward with the NHS and with the independent
sector and wherever else doctors are practising so that everybody
knows what their function is in the complaints system. Just as
we say the NHS must be a patient driven service that puts the
patient first, the complaints around functions going wrong must
again be patient driven and put the patient first so clarity has
to be the thing. It is rather a passionate thing but I feel very
strongly about it. I think as far as your particular case is concerned
it illustrates perfectly how unjoined up everything is at the
moment. That duty has to be put onto health authorities, onto
trusts to enable the GMC to get a better flow of information going.
It has to happen or people will go on working in these circumstances.
39. How does that further evidence filter through
to you? If someone has been erased from the register for seemingly
one incident and then further incidents come to light, does that
information go to you? When he reapplies to go back on the register
do you then say, "Hang on, I have got some 20 cases here."
How does that bit of it work?
(Mr Scott) There are issues, I am afraid Chairman,
around process and what the law in fairness to the individual
(because that, of course, is an important facet of the statutory
framework) would allow us to do. Essentially I think the emphasis
has shifted away from have we any more complaints that we might
take into account to a quite different point which is this: the
Council has now made it absolutely clear that doctors who have
been erased are excluded from the profession and have no expectation
that they will return to the register. So the burden of argument
is not with the Council to prove that the doctor should not be
restored; it is for the doctor to justify restoration. It is not
widely recognised that only a small proportion of doctors traditionally
have been restored. In fact, it is fewer than 20 per cent. That
is not widely recognised. A consequence of the decisions taken
by the Council last year is that we can expect to see that proportion
in future be even smaller and doctors will be required at the
point of application for restoration to demonstrate that they
possess the knowledge, skills and character required to be a medical
practitioner. The burden of proof will lie with them. If I may
mention it at the same time, Chairman, the law at the moment allows
the doctor to apply after 10 months for restoration. The Council
has decided that that minimum period should be extended to three
years, that a second application should be held for a further
one year, making a total of four, and if on that second application
the doctor is not restored then the right for further applications
should be withdrawn.
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