Memorandum from the General Medical Council (H&SC 9)
1. The General Medical Council is grateful to the Public Bill Committee for the invitation to provide evidence on the Health and Social Care Bill.
2. We welcomed the publication of the Bill as an important step towards implementing the proposals in the White Paper Trust, Assurance and Safety- The Regulation of Health Professionals in the 21st Century.
3. We broadly support the provisions in the Bill about professional regulation.
4. However, we have significant concerns about the independence of the proposed Office of the Health Professions Adjudicator (OHPA). In this memorandum, we explain those concerns and how, through amendments to the Bill, we believe they might be addressed.
5. The GMC is the independent regulator for doctors in the United Kingdom. Our statutory purpose is to protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine.
6. The GMC's duties and powers are set out in the Medical Act 1983 (as amended). We have four main statutory functions: controlling entry to the Medical Register; coordinating all stages of medical education and setting standards for UK medical schools; determining the principles and values that underpin good medical practice; and acting firmly and fairly when a doctor's fitness to practise may be impaired.
7. Our core guidance is set out in Good Medical Practice, the most recent edition of which was published in November 2006.
8. We have argued for a radical change in the composition of the Council of the GMC, a change that the Government has accepted. We proposed a balanced membership, based on parity, with no inbuilt majority, either medical or lay. The revised, balanced, composition will take effect from the end of 2008. There will be equal proportions of lay and medical members; and the membership will reflect all those who receive and provide healthcare.
9. The White Paper also confirmed, in line with our proposals, that the GMC should be accountable to Parliament.
Fitness to practise: adjudication
10. Our fitness to practise procedures have two stages: Investigation and Adjudication.
11. Within the Adjudication stage, decisions are taken by fitness to practise panels, formerly the Professional Conduct Committee, Health Committee and Committee on professional Performance.
12. Adjudication has long been the most visible area of the GMC's work. Most decisions by fitness to practise panels do not attract widespread attention. However, inevitably, some cases generate considerable public, professional and media interest. Adjudication processes and outcomes can be controversial. The issues go to the heart of matters relevant to every citizen: the protection of patients; and the ethical principles and values that govern the way medical care is provided and the relationship between patients and doctors.
13. The public interest, which includes but is not confined to the protection of patients, requires that adjudication decisions should be, and be seen to be, fair, objective, transparent and free from discrimination. Decisions are based on the values and principles set out in Good Medical Practice; and they are made without fear or favour, on the basis of the facts found proved, disregarding irrelevant considerations.
14. The importance of the independence and impartiality of adjudication cannot be overstated.
15. In 2004, the fitness to practise procedures were radically reformed. Among other things, the reforms were designed to assure the independence, robustness, timeliness, transparency and fitness for purpose of adjudication.
16. We are confident that the current arrangements lead to consistent, high quality decisions. Our processes include comprehensive audit of decisions to ensure that any learning points are fed back into the system; and our sanctions guidance is used as a model by other regulators and has been endorsed by the courts.
17. By any objective measure, our adjudication track record is extremely good. Over the last two years (2006/07) there have been 2,480 hearings regarding doctors' fitness to practise. All of these decisions are challengeable by reference to the High Court. Of this number, there have been 46 appeals of which 10 have been wholly or partially successful. This represents 0.4% of decisions which could have been challenged in the Courts.
18. The Government has decided to establish a separate organisation - OHPA - to adjudicate on cases concerning doctors. We have made clear our willingness to use our expertise to ensure a smooth transition to the new arrangements. That remains the position.
19. We said, in November 2006, that it would be important for the Government to make clear:
a. That the GMC would have a right to appeal against unduly lenient decisions by the new body.
b. The relationship between the new body and the GMC in the application of the principles in Good Medical Practice.
c. The arrangements for the operation, funding and accountability of the new body, including its independence from Government.
OHPA: appeals and application of the GMC's guidance
20. Schedule 7 of the Bill makes clear that, in making decisions, OHPA must take account of the GMC's sanctions guidance (and, thereby, its guidance on standards).
21. Schedule 7 also provides that the GMC shall have the right of appeal against unduly lenient decisions hitherto exercised by the Council for Healthcare Regulatory Excellence. Those provisions also underline and reinforce the GMC's continuing role, notwithstanding the creation of OHPA, as the body that sets standards for UK doctors and ensures that doctors maintain them.
22. The first two of the conditions we set (paragraph 19) have therefore been met in the Bill.
23. The White Paper committed the Government to ensuring the independence of regulation. Paragraph 1.5 of the White Paper said, that to ensure professional and public confidence, 'all stakeholders need stronger assurance of [the regulators'] independence:
· they must be separate from the Government, constitutionally insulated from day-to-day political pressures
· they must be independent of those who employ health professionals, whether in the NHS, the independent sector, or the voluntary sector, to ensure that employers interests are not perceived to weaken safeguards for the public or undermine the fair conduct of regulation; and
· They must be independent of health professionals themselves, so that they are not thought to be beholden to a perceived natural esprit de corps with professional colleagues.
24. We very much agree. We too are committed to strengthening the independence and accountability of medical regulation.
25. By 'independence', we mean independence from government, as the dominant provider of healthcare in the UK; and independence of dominance by any single group, including doctors.
26. OHPA will carry out an important regulatory function; and it is vital that the commitment in paragraph 1.5 of the White Paper is delivered.
27. Unfortunately, the Bill does not make clear how the principle of independence in paragraph 1.5 will be delivered. In fact, the provisions as they stand will weaken, probably fatally, OHPA's independence. They will do so by bringing OHPA explicitly and directly within the sphere of influence of the Secretary of State for Health. For example, Schedule 6 provides that OHPA must keep accounts in such form as the Secretary of State may determine. A similar provision will apply to the annual accounts which OHPA will prepare. And OHPA will be required to report on its functions to the Secretary of State. It is clear that, far from being an independent body separate from the Government and 'constitutionally insulated from day-to-day political pressures' OHPA will be a manifestation of the Department of Health in England.
28. The effect of this approach, if not its intention, would be to make the State directly responsible for carrying out a fundamental function of professional regulation. The fact that the Government is both the dominant provider of healthcare and the main employer of doctors in the UK means that the proposal is conceptually flawed. It is also entirely contrary to the direction of UK social policy over many years, the thrust of which has been to bolster independent professional regulation as a hallmark of an effective civic society.
29. What makes the proposal to extend the ambit of the State in this way even more surprising is that it has been brought forward without any prior public debate or consultation. No such idea was canvassed, let alone recommended, by Dame Janet Smith in the report of her inquiry into Harold Shipman, or in any of the other recent reports into medical regulation. It was not proposed by Sir Liam Donaldson's report Good doctors, safer patients, and, as set out above, the White Paper, consistent with all of the inquiry reports that preceded it, set out to achieve the reverse of what is now proposed.
30. Through the proposals in relation to OHPA there is a risk that the State could acquire the responsibility for the regulation of the medical profession in a fit of absence of mind. We cannot believe that this is what the Government seeks to achieve, but that will undoubtedly be the effect of what is proposed in this Bill.
31. It is important to stress that we are not suggesting that this Secretary of State, or any future Secretary of State, would actually seek to interfere in the running of OHPA in such a way that would affect the outcome of an individual case. But our long experience of adjudicating on cases has demonstrated that, as in other areas where judicial or quasi-judicial functions are exercised, whatever the reality, the problem is as much over perceptions. Indeed, it is the perception that investigation and adjudication are currently insufficiently separated that lies behind the proposal to establish OHPA.
32. This perception will prevent OHPA from functioning effectively. The effect will be to damage public and professional confidence in the entire system of medical regulation.
What now needs to be done
33. We believe that the defects in the Bill are, fortunately, remediable. We would respectfully invite the Committee to consider the need for amendments that will:
a. Guarantee the independence of OHPA. We believe that this can be done though a combination of amendments including by making OHPA directly accountable to Parliament rather than to the Secretary of State, by setting clear objectives for OHPA to follow and by making explicit that the Secretary of State has no powers of direction over OHPA's activities and will have no involvement in the appointment of members of OHPA. This would go a considerable way to ensuring that the test in paragraph 1.5 of the White Paper could be met.
b Secure OHPA's operational effectiveness. The Government has not yet made clear the detailed funding arrangements for OHPA. It is important, in our view, that whatever financial regime is adopted is sufficiently flexible to enable OHPA to respond swiftly to variations in demand. From our experience, these variations can be very difficult to predict. Such financial details as have been published in the Bill suggest that the Government has in mind a fixed annual budget model. We do not think this has the flexibility necessary to ensure that OHPA can deliver the hearing capacity it needs when it needs it, in order to protect patients and the public, and the implications of this for the eventual funding model need to be explored as a matter of urgency.
c. Ensure that OHPA delivers value for money. It is inevitable that OHPA will be costly to establish, and that the adjudication will be more costly as a stand-alone function. We are assuming that it is not the Government's intention that the GMC should pay the start up costs of OHPA. It would be helpful for the Government to make that clear. But, going forward, it will be essential that the GMC (assuming that it is to fund OHPA) should not be in the position of having to write a blank cheque to OHPA. Such an arrangement would be wrong in principle and possibly incompatible with the GMC's charitable status. The Bill provides that the Comptroller and Auditor General shall examine, certify and report on OHPA's annual accounts before laying them before Parliament. That is helpful. But we believe that OHPA should be under a statutory duty to operate cost-effectively. We emphasise that OHPA must have the resources to carry out its duties of patient protection effectively. But it must have regard to the effective and efficient use of resources in doing so, especially as those resources will be provided from elsewhere.
34. We respectfully invite the Committee to accept the conclusions of this memorandum and to take the necessary action.
35. We look forward to giving our oral evidence to the Committee.
General Medical Council
17 December 2007