4 Proposed changes
14. In response to the death of Mr Gray in February
2008, the Department carried out a review of Performers Lists
which was published in March 2009.[16]
Subsequently, in June 2009 the Care Quality Commission published
an interim statement on the services provided by "Take Care
Now", the commercial healthcare provider involved in the
Ubani case, and announced an inquiry.[17]
At the request of the Department of Health, Dr David Colin-Thomé,
Director of Primary Care at the Department of Health, and Professor
Steve Field, the Chairman of the Royal College of General Practitioners,
undertook a more general review of commissioning and the provision
of out-of-hours services.[18]
Finally, the Cambridgeshire coroner published the finding of the
inquest into the death of Mr Gray and made recommendations to
prevent a similar tragedy happening again. The coroner found that
Dr Ubani had been "grossly negligent" in administering
an overdose of diamorphine and that Mr Gray had been unlawfully
killed.[19]
15. These investigations have made numerous recommendations
to strengthen out-of-hours GP services. We took evidence about
these proposed changes from a number of the authors of the reports
and other witnesses, who also proposed reforms. We discuss these
below.
The role of the GMC in the assessment
of language and clinical skills
16. Witnesses were critical of the legislation which
prevented the GMC from assessing either the clinical or language
skills of EEA doctors. It cannot be taken for granted that EEA
doctors have appropriate clinical skills since the standards expected
of general practice in the UK do not necessarily correspond with
those of other European countries.[20]
Niall Dickson, Chief Executive and Registrar of the GMC, told
us:
The problem in relation to Europe is that [...]
the definition "general practitioner", which is happily
used and we have to accept, does not really apply so that in Germany
they do not have general practitioners as they do here. Dr Ubani
was supposedly a qualified general practitioner according to the
rules of the European Union and we had to register him on the
GP register, which simply goes to show that system absolutely
does not work.[21]
17. The GMC is frustrated by the restrictions placed
on it. EU law clearly forbids the GMC from testing for clinical
competence, but the GMC told us that it only forbids the systematic
testing of language skills; i.e. the Council could test in individual
cases where it was thought necessary. Mr Dickson claimed that
DH civil servants had 'gold-plated' the EU Directive when drafting
the Medical Act 1983 so as to prevent it from undertaking any
language testing. Mr Dickson contrasted this with the approach
in France:
If you come from a non-French speaking country
the [French] regulator will ask to have a chat with you and if
they think your French is not up to much on an individual basis
they might ask you to take a test or to go away and learn French
and then come back again. The 1983 Medical Act actually prohibits
us from doing that.[22]
18. Mr Dickson argued that: "Free movement of
labour is fine but in our view patient safety trumps the free
movement of labour."[23]
Legislative change is required, he argued:
We would like a change in the law both in this
country to the 1983 Medical Act which in our view goldplates the
European Directive and actually makes it even more difficult in
relation to language and we would like a change to the European
Directive which would enable us to check competency of doctors
coming from the European Union.[24]
19. The Minister disagreed about the possibility
of amending the 1983 Act. The GMC and the Department have apparently
received conflicting legal advice as to whether the Medical Act
1983 could be amended without contravening the European Law.[25]
20. In any case, the relevant European Directive
will be revised in 2012. The Minister told us that he supported
European legislative change to enable the GMC to test the linguistic
competence of EEA doctors who wish to work in England:
If we were able to change it in 2012 so that
the GMC were able to carry out some language tests, I would welcome
that and I am certainly happy to press for that.[26]
21. EU legislation prevents the GMC both from
testing the clinical competence of EEA- qualified doctors who
wish to work in the UK and from systematically testing their language
skills. The GMC believes that the Medical Act 1983 "gold-plated"
EU Law and forbade the GMC from giving any language tests to EEA
doctors. The GMC informed us that the situation in France was
different: there, the regulator undertook language tests within
the remit of the relevant EU Directive. If the GMC had been able
to check the language skills and clinical competence of EEA doctors
wishing to practise as GPs, lives might have been saved.
22. There is a difference of legal opinion between
the Department of Health and the GMC. We recommend that, without
delay, the Department and the Council share their legal advice
about the legality of amending the Medical Act 1983.
23. We further recommend that, as a matter of
extreme urgency, the Government seek to make the necessary changes
to the Directive 2005/36/EC before it is due to be revised in
2012, to enable the GMC to test the clinical competence of doctors
and undertake systematic testing of language skills so that everything
possible is done to lessen, as soon as possible, the risks of
employing another unsuitably trained or inexperienced doctor in
out-of-hours services.
Performers Lists, PCTs and SHAs
24. Given the GMC's lack of powers, it is vital that
PCTs carry out thorough checks on the clinical and language skills
of EEA doctors. This must be done because it cannot be assumed
that these skills are always what they should be where a doctor
has an overseas qualification. The Royal College of GPs informed
us:
There is a lack of competence—clinical
and linguistic—of some of the GPs entering the UK to work
in the NHS. I have consistently raised this issue with senior
officials and politicians at the Department of Health.[27]
25. Unfortunately, some PCTs have not done their
job. Professor Field stressed that problems had occurred despite
systems being in place to prevent them: "if everybody did
what they should have been doing properly the quality of care
would have been good".[28]
26. Dr Ubani was refused access to West Yorkshire
PCT's Performers List following a failed language test. However,
the Cornwall and Isles of Scilly PCT failed to check Dr Ubani's
language skills and also neglected to check whether he had applied
for inclusion on any other PCT's Performers List. We were told
by Professor Field that:
Clearly Dr Ubani got in through the performers
list in Cornwall and the Scilly Islands. He was rejected in Leeds
I understand because of his language. Cambridge PCT took him on
and there were no checks. Now you have three PCTs there all meant
to be doing similar checks with different outcomes.[29]
This happened in spite of the Department of Health's
and the GMC's repeated reminders to PCTs of their responsibilities.[30]
27. Surprisingly, some PCTs do not even appear to
know that the GMC is not permitted to undertake language tests,
as a recent review commissioned by the Department of Health indicated.[31]
28. The Minister stressed that the failure to carry
out the requisite checks was illegal. He told us:
I am making absolutely clear that PCTs should
have been, by law, since 2004 looking at language skills. They
had no discretion on this; it was a legal obligation. They should
be doing it now. If they have not been doing it, and we know Cornwall
was not doing it, then they were in breach of the law.[32]
29. We asked the Minister what actions had been taken
against those PCTs which had broken the law in this way. We were
informed:
We confirm that the Department's understanding
is that no disciplinary action has been taken by the PCT. The
South West Strategic Health Authority, which is responsible for
performance managing local NHS bodies, is aware of and is monitoring
the situation. We understand that the PCT has since reviewed its
procedures and has introduced a number of new safeguards, including
arrangements for assuring itself that GPs it admits to its performers
list have necessary knowledge of English language.[33]
30. There has also been a failure on the part of
SHAs, which are supposed to performance manage PCTs. Professor
Field told us:
The SHAs frankly also need to take this seriously
and make sure that the PCTs are doing their job properly. All
SHAs should do that in England. There are enough checks and balances
to make sure there is a safe system but it is not taken seriously
and consistently from PCTs all the way through the system.[34]
31. The Minister stressed that because it would take
time before either the Medical Act 1983 could be amended (even
if it were permissible) or the EU Directive could be revised,
it was essential that in the meantime PCTs and SHAs were doing
their jobs properly.[35]
32. The Coroner in Mr Gray's case recommended that
the DH "institute a national database of doctors from abroad
who apply for inclusion on any performers list", containing
data held on them by PCTs relevant to their fitness to practise.[36]
This would enable PCTs to check on the status of would be GPs,
in particular whether a doctor had been rejected by another PCT.
33. The Minister considered that there was a strong
case for such a database:
Q110 Sandra Gidley: You have mentioned
about the performers list that you have put extra guidance out
and you have tried to get everything up to standard, but was that
the right system in the first place? Do you agree with the coroner's
recommendation that there should really be a national database
of doctors?
Mr O'Brien: Yes, I do agree with that
and we want to consult with the medical profession on how we do
this. Is a PCT performers list approach the best one? There was
a review that completed in March of last year which recommended
62 recommendations for reform and improvement of the performers
list and that did not recommend that we move to a national database,
but I do think there is a strong argument for that and what we
want to do is work out how we should do that, so the straight
answer to your question is yes, we do think we need to move to
that, and the question is quite how we do it and what the next
steps are.
34. We agree with the Minister that it is essential
to ensure that the system of vetting EEA doctors begins to work
at once without waiting for the necessary national and EU legislative
changes.
35. In the interim, SHAs and the healthcare regulator,
the Care Quality Commission, must ensure that all PCTs are carrying
out language tests on EEA doctors and assessing their fitness
to practise before they are admitted to Performers Lists.
36. The Department must implement the recommendations
of the 2009 Performers List review without delay. We also recommend
that the Department of Health review the merits of a national
database for doctors working in general practice.
37. The Minister told us that Cornwall and Isles
of Scilly PCT had acted illegally in admitting Dr Ubani to their
Performers List[37]
but subsequently the Department informed us that no disciplinary
action had been taken by the PCT although the SHA was monitoring
the situation and the PCT had reviewed its procedures. Moreover,
no action has been taken against the PCT.
Commercial providers
38. There are good out-of-hours services. Two of
the GPs we took evidence from suggested these were more likely
to be provided by not-for-profit GP co-operatives than commercial
providers since the former were more likely to have local GP engagement
and involvement. Professor Field told us:
I do […] feel that co-operatives offer an
advantage over private providers in that it does mean that you
are more likely to have local GP engagement and local GP provision
therefore out-of-hours as well as in-hours, and the communication
is better.[38]
39. Commercial providers must meet clinical governance
and other standards set by PCTs who commission their services,
but there is a danger that, in a drive to cut costs, quality of
clinical care is squeezed. Fay Wilson, a GP working for an out-of-hours
GPs co-operative, informed us of her concerns:
I really am fundamentally anxious about the fact
that this is a purely marketised privatised bit of the health
service. I am personally uncomfortable with it but here we are
and we have to make the best of it. I talk to GPs and people who
have been in my position who say, "I will not work in the
new system because I have had to drop my standards too much and
I cannot reconcile myself with it".[39]
40. Monitoring the standards achieved by care providers
who have been commissioned by PCTs, whether commercial or non-profit,
requires constant vigilance. Mr Bates, Chief Executive of NHS
Worcestershire, told us:
I think one of the lessons that I would offer
up to the Committee today is that if you think you can procure
a service, sign a contract and say that we have everything pinned
down in a contract and we can now turn our backs and work on some
other problem, you are wrong.[40]
41. Unfortunately, it is apparent from the Department's
own review that some PCTs are failing in their responsibility
to monitor the standards of providers who have been commissioned
to provide out-of-hours care.[41]
42. The Department must ensure that all PCTs'
contracts with out-of-hours service providers detail the standards
for quality of care, clinical governance and risk management in
out-of-hours services. SHAs should play a stronger role in examining
how PCTs are meeting these requirements. In addition, we recommend
that the Care Quality Commission address PCTs' competence in this
area under the new regulatory system. The Care Quality Commission
must also use its powers under the new registration system to
deal with commercial providers that endanger patient safety by
failing in their obligation to check the clinical and language
skills of overseas locums.
Induction, Training and Revalidation
43. Overseas GPs who come to work in the UK and who
may be completely unfamiliar with the NHS and its systems can
begin to see and treat patients without a thorough induction,
training and mentoring process. The coroner in Mr Gray's case
found that:
It is clear to me that Dr Ubani in his dealings
with patients over that fateful weekend was incompetent—not
of acceptable standard. I consider the familiarisation process
and induction process provided to Dr Ubani to have been for him
insufficient. Indeed I think it was inadequate.[42]
This view was echoed by Professor Field who told
us "I do not believe that our training for out-of-hours is
adequate at the moment".[43]
44. It is imperative that PCTs ensure that contracts
with out-of-hours providers detail rigorous standards in respect
of the recruitment, induction and training that doctors should
receive. Furthermore, PCTs must be satisfied that these are delivered
by any sub-contractor or agency which providers may use.
16 Department of Health, Tackling Concerns Locally:
The Performers Lists System: A Review of Current Arrangements
and Recommendations for the Future, March 2009. Back
17
Update on Enquiry into Take Care Now and Out-of-Hours Services,
Care Quality Commission, June 2009, www.cqc.org.uk. Back
18
Department of Health, Current arrangements for the local commissioning
and provision of out-of-hours primary care services, January
2010. Back
19
Inquest into the Deaths of David Gray and Iris Edwards: Coroner's
Summing Up, Decisions and Announcements Back
20
Q 71 Back
21
Q 69 Back
22
Q 87 Back
23
Q 64 Back
24
Ibid. Back
25
Q 115 Back
26
Ibid. Back
27
Ev 46 Back
28
Q 58 Back
29
Q 72 Back
30
Q 104 Back
31
Department of Health, Current arrangements for the local commissioning
and provision of out-of-hours primary care services, January
2010. Back
32
Q 113 Back
33
Ev 55 Back
34
Q 71 Back
35
Q 114 Back
36
Inquest into the Deaths of David Gray and Iris Edwards: Coroner's
Summing Up, Decisions and Announcements Back
37
Q 113 Back
38
Q 57 Back
39
Q 7 Back
40
Q 4 Back
41
Department of Health, Current arrangements for the local commissioning
and provision of out-of-hours primary care services, January
2010. Back
42
Inquest into the Deaths of David Gray and Iris Edwards: Coroner's
Summing Up, Decisions and Announcements Back
43
Q 75 Back
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