Memorandum submitted by the
Medical Defence Union (H&SC 10)
Introduction
1. The MDU is a mutual, non-profit making,
organisation providing a wide range of medico-legal services to its members who
include over 50% of the UK's doctors in hospital and primary care, and 30 % of
dentists. In exchange for payment of an annual subscription, members receive
medico-legal benefits that include an insurance policy providing indemnity for
clinical negligence claims, and access to advice and assistance with matters
such as GMC and employers' disciplinary investigations into matters arising out
of their provision of care to patients.
2. The MDU has taken part, on behalf of its
members, in the consultation exercises that preceded the publication of the
Health and Social Care Bill and expressed concern about a number of proposals
that now feature in the legislation.
They are:
Change to the civil standard of proof
Clause
104
3. While
the GMC should, of course, take action to protect the public if a doctor
represents a danger to patients, it is important to remember that the doctor
whose fitness to practise is under consideration has a right to a fair hearing.
There must be safeguards in place to protect this right, especially when there
is the potential for the doctor to lose his livelihood.
4. The MDU believes that the criminal standard
of proof should remain for Fitness to Practise (FTP) panels because a doctor's
registration is at risk. We agree that
there is a need to protect patients, but this must be balanced against the right
of the doctor to have appropriate safeguards when his or her career is at
stake. For cases that do not currently amount to impaired fitness to practise,
the GMC already has the power to administer warnings where it considers it
appropriate to register concerns about a doctor's behaviour or performance that
indicate a significant departure from the standards set out in Good Medical
Practice. This is a matter that will remain on the register for five years
and, during that time, will be disclosed to the doctor's employer, and any
prospective employer and to any other enquirer.
5. We have seen the GMC's proposals for the
introduction of a civil standard to its FTP panel determinations and have no
confidence in the proposed procedure which we believe is likely to lead to
unfair and inconsistent decisions which will not inspire confidence in the
procedure.
6. A civil standard
of proof is likely to result in considerable additional delay and expense in
cases and may well lead to legal challenges in order to protect doctors'
interests. This would not be in the
public interest
(please
see pages 7-11 for further information)
Requirement to share 'soft intelligence' or soft
information
Clause
112
7. Clause 112 provides for regulations to be
made to require NHS trusts and other bodies to provide and share information
about health care workers in circumstances where that person is likely to
constitute a threat to the health and safety of patients. However the words
used in (1) (a): 'which may show that the worker is likely to constitute a
threat to the health and safety of patients,' make it clear that the threshold
for sharing such information is very low.
The use of the word 'may' would require such bodies to keep and pass on
information in circumstances where it has not been shown to any recognised
standard that the healthcare worker is a threat to health and safety of
patients or, indeed, it would not require the person keeping the information on
file, or passing it on, to even try to determine if the information is correct.
8. Contrast this with the guidance that the GMC
gives to doctors in Good Medical Practice in the interests of protecting
patient safety:
'The safety of patients must
come first at all times. If you have
concerns that a colleague may not be fit to practise, you must take appropriate
steps without delay, so that concerns are investigated and patients protected
where necessary.'
9. It is a serious failing that clause 112 makes
no requirement for investigation of information before it is collected and shared,
as this could allow dissemination of material that is inaccurate, damaging to
and even defamatory of the individual concerned, without that person even
knowing it is being passed on.
10. It is inappropriate to suggest that any
information suggesting potential risk to patient safety should be passed on to
other bodies by an employer/contracting body, unchallenged and uninvestigated.
Employers/contracting bodies who become aware of 'soft information' that gives
grounds for concern about issues of patient safety must investigate it to
determine if the allegations are groundless, for example just gossip or arising
from intra and inter-professional rivalry; or if there are serious concerns
which should be acted upon. If there is
'soft intelligence' about a doctor, ie rumblings and vague concerns about
potential risk to patient safety, that come to the attention of his or her
employer, that 'intelligence' should be investigated locally and the doctor
should be informed of its existence and allowed the opportunity to comment on
it. It is in the doctor's interests and that of his patients that any concerns
are properly investigated and addressed as appropriate.
11. In the interests of patient
safety we do not support the concept of employers/contracting bodies keeping
'soft intelligence' on a file if it is unsubstantiated and does not amount to
grounds for serious concern. If employers/contracting bodies merely keep 'soft
intelligence' on file because it does not look serious, and the employer waits
until further 'soft intelligence' arises, or there are more serious grounds for
concern, opportunities may have been missed to prevent problems arising. We do not believe this approach would be in
the interests of patient safety. If the
employer/contracting body has any grounds for concern about potential risk to
patient safety, even in the form of 'soft intelligence,' they should be
properly investigated through appropriate channels at the time they are raised,
to determine whether there is any substance to them, and if they need to be
acted upon.
12. We understand this change is
being proposed because in the past there have been concerns about a very few
doctors that were 'below the surface' in cases where that doctor was later
convicted of a serious crime. It is suggested that this change would prevent
this happening in future and, if the same events happened today, any concerns
would surface. We agree entirely that
if there are any concerns about patient safety, they must be raised, but they
must all be brought to the attention of the doctor in question and
investigated. If concerns are substantiated, appropriate action will need to be
taken, and if they are unfounded, they should not lie on a doctor's file and
nor should they be shared without that doctor's knowledge.
13. It would be unfair and unlikely
to comply with the provisions of the Data Protection Act 1998 (DPA), and
potentially defamatory, to pass on to a prospective employer/contracting body
'soft information' suggesting concerns about a doctor's practice and patient
safety. We believe such a practice would not comply with the data protection
principles contained in the DPA. There are exemptions, but we do not believe
they would apply in the case of 'soft intelligence' about patient safety held
by the employer/contracting body which is passed on to a prospective
employer/contracting body without investigation or verification, and when the
subject is not aware that the data exists and is being processed in such a way.
14. A doctor has the right on
request to be informed about data that is held. S31 of the DPA contains exemption from these subject information
provisions for regulatory activity, but that only applies to the extent that
providing information to the data subject would be likely to prejudice the
proper discharge of the regulatory function. We do not believe that is the case
here, indeed it is quite the opposite, as it can only benefit the regulatory
function if the doctor can be given an opportunity to see and comment on data
concerning issues of patient safety held by his employer/contracting body.
15. The fourth statutory data
protection principle is that the data should be accurate and, where necessary,
kept up to date. Schedule 1 pt II paragraph 7 provides that the fourth
principle is not contravened if: a data controller accurately records
information obtained by a third party, but only so long as, taking into account
the purpose for which the data was obtained and further processed, (a) the data
controller has taken reasonable steps to ensure accuracy of the data and (b),
if the data subject has notified the data controller that in his or her view
the data is accurate, the data indicates that fact. It will be inappropriate that information concerning potential risks
to patient safety sits on a doctor's file with his employer/contracting body,
accompanied by a note that the doctor regards it as inaccurate, without a
proper investigation into the matter at the time.
16. To consider the potential
practical effect if regulations were made as indicated in clause 112 (1) (a),
it is conceivable that those advising doctors and other healthcare workers
would advise them to ensure they are routinely aware of information about them
that their employers and contracting bodies have on file and, if necessary to
seek access to such information through the Data Protection Act, so that they
are aware what is being said about them and that they are in a position to
challenge the accuracy of such information if necessary. This would no doubt result in a deluge of
requests by subjects for access to information about them and, if access were
refused, appeals to the Information Commissioner. There is also the potential for libel actions if information that
is passed on is defamatory and damaging to the healthcare worker, in circumstances
where an employing body would not be able to rely on a defence of qualified
privilege.
17. Further, to pass on information
about an employee that was damaging and that had not been proven and without
the knowledge of that employee, would contravene employment law. The requirement proposed in clause 112 in
respect of sharing information about healthcare workers is contrary to the
rights in employment law that are available to all citizens and healthcare workers
cannot be deprived of such rights.
Introduction of
responsible officers
Clauses
110 & 111
18. We do not support the
introduction of responsible officers. We do not believe it has been adequately
demonstrated that it is necessary or in the public interest to subject doctors
to any new burden of regulation. Doctors are already held accountable in far
more ways than any other UK profession, with the possible exception of other
healthcare professionals such as dentists. In particular, we do not support the
proposals for responsible officers with the powers to put 'recorded concerns'
on a doctor's record.
19. It is our view that, in the
interests of patient safety, better and more constructive use should be made of
existing procedures and of other mechanisms that exist for measuring and
assessing doctors' performance and conduct, with the aim of taking remedial
action before serious concerns arise. We suggest it is possible to create 'a
fairer, more reliable and better co-ordinated system for recognising and
dealing effectively with concerns about a doctor's practice', principally by
using or adapting existing procedures, structures and organisations. We believe
that such a system would be more cost-effective than adding new and different
regulatory layers, and have suggested to the Department of Health that
comparative costings are prepared - though we have not seen such costings.
Given that employers could, and arguably should, undertake functions proposed
for responsible officers, with the assistance of the National Clinical
Assessment Service, it may be better and more cost-effective to ensure there
are adequate numbers of staff to perform this function, rather than to set up a
whole new structure which will require substantial additional finance to
administer, staff and ensure training and other needs are met.
20. As the responsible officer will
investigate cases and apply 'sanctions' that are likely to have an effect on a
doctor's current and future employment prospects, a statutory framework will be
necessary. There will also need to be
guarantees of the independence and objectivity of the affiliates and a robust
means of ensuring consistency in their performance and decision-making
nationally.
Criminal rather than civil standard of proof
21. The argument that the public interest justifies a switch to a lower
standard of proof because public safety would be better safeguarded is
flawed. It is an argument that would
apply to criminal cases too. There is
an overwhelming public interest in law and order, and the protection of the
public from crime, yet the criminal standard of proof is applied across the
range of offences, from minor misdemeanours to the most serious, such as child
abuse, rape and murder, where the allegations (if true) may mean the defendant
poses a serious threat to public safety.
Nevertheless, it is widely accepted that the public interest is served
by the application of the criminal standard.
It cannot be in the public's, patients' or profession's interests for
good doctors to be found impaired when they are not. A lowering of the threshold of proof risks such unfairness and
will undermine confidence in the regulatory process.
22. What would a change to the civil standard achieve? If the purpose is to lower the threshold for
findings of impairment of fitness to practise, thereby bringing more doctors
under the FTP Panels, then the GMC itself does not believe the change would
achieve this result. We note that in
the GMC's consultation document it is stated the GMC has been advised by
leading counsel that application of a flexible civil standard appropriate to
the seriousness of the allegation and the consequences for the doctor should
lead to the same or similar results as would application of the criminal
standard. A change to the civil
standard would import disadvantages associated with it, without meaningful
benefit.
23. Important considerations in choosing the standard of proof are: the
simplicity of legal concepts, consistency of result between FTP panels,
transparency of decision-making and fairness.
24. A key virtue of the
criminal standard is its simplicity. It
is a legal concept embedded in the criminal justice system that is applied day
in day out by members of the public. It
has withstood the test of time.
25. It should be noted that
the criminal standard of proof of 'beyond reasonable doubt' or of 'being sure'
does not create an artificially high standard of proof: it does not equate with
certainty. A reasonable doubt is the sort of doubt that might affect
the mind of the person dealing with matters of importance in his own affairs. We contend it is this level of importance
that in fairness to the doctor should determine the standard of proof of FTP
hearings. This is especially so when
decisions are being taken about a doctor's professional reputation and
livelihood.
26. The criminal standard of proof can properly be regarded as a
'user-friendly' concept. By reason of its simplicity and familiarity it can be
applied consistently by differently constituted FTP panels comprising
non-specialists and non-lawyers. When
findings of fact are made using this concept, all concerned know and understand
the standard that has been applied. The
fact-finding process is underpinned by transparency.
27. For there to be a fair hearing there needs to be a common, easily
understood threshold for proof. In contrast a 'flexible' or 'sliding scale' civil standard
is not a readily understood concept nor is it easy to apply. Essentially the sliding civil standard requires that more
cogent evidence is needed to prove the allegation that has serious
consequences. In practice, the more
serious the allegation, and the more serious the consequence, the higher the
degree of probability required.
28. The
standard to be applied needs to be clear at the outset of the case. The prosecution, defence and the FTP panel
need to know the standard to be applied at the start of the case. It is against this standard that the
evidence to be called will be assessed.
However, in FTP hearings the fact-finding stage precedes the sanction
stage. In many cases the FTP panels
will not know at the outset whether the allegations, if proven, are likely to
result in suspension or erasure. How
then will they know whether they should be applying the highest civil standard?
29. Furthermore, Notices of Inquiry often comprise
a series of factual allegations that together are said to comprise impairment
of fitness to practise. Some factual
allegations are less serious than others.
If a sliding scale or flexible civil standard were used, it would be
necessary to apply different tests to the evidence in support of the less and
more serious factual allegations. We
set out below a factual scenario that illustrates the problems the civil
standard may give rise to.
30. In response to a request for a home visit, a GP
visited the patient at his home, in the presence of the patient's wife. There was a dispute about the symptoms
complained of, the adequacy of the history taking and the extent of the
examination. It was alleged the patient
had complained of fever, abdominal pain and diarrhoea. It was alleged the GP was abrupt and
dismissive of the patient's symptoms, had failed to check his temperature or
examine the abdomen. The GP advised the
patient had a viral illness that should begin to resolve within 48 hours.
31. The next day the patient's condition worsened. His wife summoned an ambulance. He was taken to hospital. A perforated appendix was diagnosed. The patient underwent emergency
surgery. Widespread intra-abdominal
infection was found. Despite intensive
care the patient duly succumbed to sepsis.
32. An inquest was held at which the GP gave
evidence on oath. He denied his history
taking and examination had been inadequate.
He said the patient had complained of diarrhoea and vomiting only, and
he had carried out a careful examination that had included palpation of the
abdomen but no abnormality had been detected.
He produced a handwritten note to this effect that he said he had
written in his car immediately after the visit. The patient's widow denied the doctor's account was true and she
alleged the handwritten note was false because it did not record the main
complaint of abdominal pain and the GP had not examined her husband's abdomen.
The widow complained to
the GMC. In due course the case was
referred to an FTP panel with allegations that:
At the home visit the GP
had failed to obtain an adequate history of the illness and failed to carry out
an adequate examination.
The GP had failed to make
an adequate note of the home visit.
The GP had given an untruthful account at the
Inquest in that he had falsely stated there had been no complaint of abdominal
pain and that he had palpated the abdomen.
33. Each
allegation of fact might be considered to raise a different degree of
seriousness, raising issues both of performance and misconduct. The adequacy of the history taking and
examination might be considered to be relatively straightforward matters
importing no more than a simple balance of probability in deciding whether or
not the widow's account was to be preferred over the GP's account. On this decision would turn the further
allegation of the adequacy of the GP's note.
However, resolution of these simple factual issues would also determine
whether the GP had given an untruthful account at the inquest, and thus
committed perjury. The highest civil standard
should apply to such a serious allegation of a crime.
34. An FTP panel determining these allegations
might be able to resolve the facts on a simple balance of probability, finding
the allegation of a complaint of abdominal pain and a failure to examine the
abdomen proved. The logical consequence
of such a finding would be that the GP had also committed perjury at the
inquest. Yet if a high civil standard
equating to a criminal standard had been applied, in a situation where it was
the complainant widow's word against the GP's word, an FTP panel might think
there was sufficient doubt so that they could not be sure.
35. If, because of the perjury allegation, the FTP
panel applied the highest civil standard equivalent to the criminal standard,
it might then acquit the GP of all allegations. However, if the facts were changed, so that there had been no
allegation of perjury at the inquest, the GP might have been found guilty on
the simple application of a preponderance of probability.
36. Such a result would lead to inconsistencies of
approach between cases, with some doctors whose facts give rise to more serious
allegations of misconduct having the protection of a civil standard equivalent
to the criminal standard, whereas doctors without an allegation equivalent to a
crime being in jeopardy of an adverse finding based on a lower standard.
Additional Briefing
The Office of the Health Professions Adjudicator -
clauses 91-102 and Schedule 7 - adjudication functions under the Medical Act
1983
1. In the interests of fairness and justice when
a doctor's livelihood is at stake there is a good argument for suggesting that
if the GMC is to be the 'prosecutor' in the context of complaints, it should
not also be the judge and dispenser of sanctions. It is reasonable for the GMC
to set standards of conduct, policy and procedural rules and to investigate
complaints and to present them; but the adjudication function should be wholly
independent of the GMC, since as setter of standards and prosecutor, it cannot
be independent as an adjudicator. Thus
we agree with the principle that formal adjudication should be undertaken by a
separate and independent tribunal with legal, medical and lay representation
and support the principles behind clauses 91-102 which allow for a new Office
of the Health Professions Adjudicator.
We have, however, some concerns:
Clause 101
2. This
clause relates to the duty upon the OHPA from time to time to seek the views of
certain bodies including, at (d): 'any other bodies which appear to the OHPA to
represent the professions regulated by the Medical Act 1983 ...'. We would expect
that this clause should include bodies such as ourselves and other the medical
defence organisations (MDOs) as that is what is already set out in legislation
relating to the General Medical Council.
3. The relevant Schedule in the
Medical Act [Sched 4 (1) (6)] refers to 'such bodies of persons representing
medical practitioners, or medical practitioners of any description'. However, MDOs are mutual bodies representing
individual doctors, rather than the medical profession as a whole and it could
be arguable that this clause did not include such bodies. Given that the MDOs
are the principal organisations providing doctors with advice and assistance
with regulatory proceedings, it would be clearer if there was a specific
requirement to consult such bodies. This could be achieved by refrence to
bodies which appear to the OHPA to represent medical practitioners regulated by
the Medical Act 1983.
OHPA not wholly independent of GMC - Schedule 7 Part
1 - 4
4. This clause inserts a new section into the
Medical Act 1983 which provides for the General Medical Council to publish
guidance on what are currently known as 'indicative sanctions', that is what
type of sanctions should apply to the doctor, depending on the facts that are
found by the adjudication panel. Further, the OHPA 'must take account' of this
guidance and, a new S40A of the Medical Act, set out at clause 11, provides the
GMC with powers to refer decisions to the relevant court on certain grounds,
for example, leniency.
5. Although it is the intention that the OHPA is
a separate and independent adjudicatory body, the clauses above will have the
effect of allowing the GMC to continue to determine the sanctions that should
apply in fitness to practise decisions, and the OHPA must take account
of such guidance in making its determinations. Further, the GMC will be able to
challenge decisions of OHPA panels on a number of grounds.
6. It is our view that for the GMC to retain the
power to provide guidance, of which the OHPA is required to take account cannot
make the OHPA properly independent and contravenes the right under Article 6 of
the European Convention on Human Rights, to a fair hearing. We note that the explanatory note to the
Bill has partially addressed this at paragraph 576 but it is our view that this
is incorrect. The explanatory note
suggests that the provision for the GMC to continue to set indicative sanctions
does not compromise a doctor's rights under Article 6 because the OHPA will
already have decided on the facts of the case before it applies any sanction.
However, the decision on sanctions is as much a part of the panel's hearing as
the finding on facts and the two cannot be separated. For the procedure to be compliant with Article 6, finding of
facts and determination of the sanction would both need to be independent of
the GMC.
7. No one would suggest that it would be
appropriate for a judge in criminal proceedings to be required to impose a
sentence on the basis of guidelines produced only by the Crown Prosecution
Service. Rather, judges take account of guidance produced by the independent
Sentencing Guidelines Council
8. The MDU believes that it is entirely
appropriate for the GMC to set standards for the medical profession and that
such standards will need to play a part in any decisions on sanction made by
the OHPA. It is our view, however, that
the OHPA should be able to decide upon sanctions that it considers appropriate
and that, while it may seek advice from other bodies and consult on such
sanctions in draft, it should not be required to take account of guidance
provided by the GMC only. To protect
the public, the Bill provides the GMC with powers to appeal decisions by the
OHPA that it considers inappropriate for specified reasons and that should be
an adequate check that the OHPA is applying the standards set out in Good
Medical Practice appropriately.
January 2008