Health and Social Care Bill

Memorandum submitted by the General Medical Council (HS 113)



1. The GMC is the independent regulator for doctors in the UK. Our purpose is to protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine. Our duties and powers are set out in the Medical Act 1983 (as amended).

2. In our memorandum on the Health and Social Care Bill we address issues related to Section 215, Abolition of the Office of the Health Professions Adjudicator. We also examine some of the implications that the proposed abolition of PCTs and SHAs will have on revalidation, and the regulation of medical education and training.

Abolition of the Office of the Health Professions Adjudicator (OHPA)

3. OHPA was established in law in January 2010. It was intended to ensure a clear separation between the investigation of fitness to practise cases by the GMC and the process of determining whether a professional’s fitness to practise is impaired.

4. OHPA had been preparing to assume operational responsibility for the adjudication of fitness to practise cases involving doctors from the GMC in April 2011. In due course it was anticipated that OHPA would assume the adjudication function of all the healthcare professional regulators.

5. In December 2010, following consultation, the Government confirmed that it did not consider the establishment of a new body to be the most proportionate approach to adjudication and does not intend to proceed with the transfer of adjudication to OHPA.

6. Our evidence on this issue sets out the changes which have already been made to the GMC’s adjudication function as well as our proposals to reinforce the autonomy of decision making at the adjudication stage and to streamline the procedure.

Recent changes to the GMC’s adjudication functions

7. In 2000, we commenced a fundamental review of our fitness to practise procedures. Following public consultation, the Council agreed to bring together our three separate procedures for conduct, performance and health. Amendments were made to the Medical Act 1983 and new procedural rules, the General Medical Council (Fitness to Practise) Rules 2004, were introduced.

8. The changes resulted in:

a. An approach which looks at all aspects of a doctor's fitness to practise together (which might include issues relating to health, conduct or performance) based on the concept of impaired fitness to practise.

b. The introduction of a degree of separation between the investigation and adjudication stages.

c. The introduction of professional decision makers (case examiners) at the investigation stage.

d. A staged decision making process based on formal criteria and supported by extensive guidance allowing for thorough audit of case progression.

9. In addition, Council members have had no role in either the investigation of cases or in adjudicating since 2004. Council is our governing body and sets our strategy and priorities, ensuring that we are properly managed and that we fulfil our statutory and charitable purposes.

10. We have kept the operation of the Fitness to Practise Rules 2004 under review and further improvements have been implemented including moving to the civil standard of proof for hearings. Additionally, the infrastructure supporting the fitness to practise procedures has been significantly enhanced. This includes a more robust process for monitoring and supporting those doctors who are subject to undertakings and conditions and an electronic case management system.

11. In 2009, our approach to entering agreements with doctors (called undertakings) was extended. The aim was to increase the opportunity for remediation and rehabilitation of doctors whose fitness to practise was impaired in appropriate cases without the need for a fitness to practise panel hearing.

12. There is an active training and development programme for panellists and for staff. Regular training events are held for panellists to brief and update them on changes to legislation, case law and policy, with the aim of ensuring more consistent and robust decision making. Panellists are also subject to 360º assessment following every hearing. Staff undergo thorough induction training and have access to manuals which set out in detail the procedures governing the handling of cases.

Assessment of our fitness to practise procedures

13. Current data [1] suggests that decisions made by the GMC’s fitness to practise panels are robust. Only a small proportion of cases are challenged before the courts, and, of those, only a very small proportion are successful.

14. In their 2009/10 Performance Review [2] , the Council for Healthcare Regulatory Excellence (CHRE) reported positively on our performance stating:

‘The GMC has continued to perform well, demonstrating excellence in several areas across its functions in a year of significant change. It is impressive that the GMC has maintained its commitment to continuous improvement, even in areas where it was already performing to a good standard, and to addressing challenges in medical regulation.’

The future of adjudication

15. Following proposals outlined in the 2007 White Paper, Trust, Assurance and Safety – the Regulation of the Health Professions in the 21st Century, we had been expecting to transfer our adjudication function to OHPA.

16. Following public consultation, the Government confirmed in late 2010 that it does not intend to proceed with the establishment of this new body.

17. The start-up costs associated with the establishment of OHPA and the increased ongoing costs associated with a separate organisation is clearly a key consideration. Costs would be incurred not only by the taxpayer, but also by doctors, who would be expected to pay for the additional running costs of the new organisation.

18. Figures contained in the impact assessment accompanying the consultation document suggest that the net benefit of strengthening and modernising the GMC’s systems and procedures instead of transferring adjudication to OHPA is in the region of £45–£59 million [1] over a five-year period.

19. As a result we consider that ensuring greater separation between investigation and adjudication within the GMC, while delivering the key changes envisaged under OHPA, is the most proportionate way forward.

20. Following the Government's announcement, we have been developing proposals to both reposition adjudication within the GMC to achieve greater separation and to modernise and streamline the hearing procedure to make our procedures more efficient and effective. In developing a new approach we have drawn on best practice from other jurisdictions, such as the Courts and the Tribunal Service. We have also taken into account the work undertaken by OHPA which stimulated a useful debate on the future of the adjudication function.

Proposals to reposition adjudication within the GMC

21. Our aim is to create a body that will be recognisable as operationally separate from the rest of the GMC’s work. This will strengthen public confidence in fitness to practise panel decisions by increasing the separation between our investigation role in bringing proceedings on the one hand from the function of adjudicating on those cases.

22. While the GMC has achieved a degree of separation to ensure fairness and impartiality of panels since the new procedures were introduced in 2004, further separation is possible.

23. To achieve this we propose to set up a body provisionally called the Medical Practitioners Tribunal Service (MPTS) to assume responsibility for the day-to-day management of adjudication and be accountable for the decisions made by panels, which we propose in future be called medical practitioner tribunals.

24. At present, fitness to practise panels make their decisions independently of the GMC and can and sometimes do make decisions that do not accord with our preferred outcome. We propose to strengthen the separation between our investigation and adjudication work by placing all aspects of operational management of adjudication under the control of the MPTS.

25. Our proposed governance structure for the MPTS includes the appointment of an independent Chair and two further members to act as the executive and new reporting arrangements to provide further assurance that individual tribunal decisions are arrived at independently. We are proposing to seek a right of appeal for the GMC against tribunal decisions so that, where we disagree with the outcome of a tribunal hearing, there is a fair and transparent procedure to challenge that decision. This will further signal the separation between our investigation work and the adjudication of cases.

Proposals to modernise and streamline the hearing procedure

26. We will also use the opportunity to modernise our procedures. In the last three years the number of referrals to fitness to practise panels has increased, as has the complexity and average length of a fitness to practise hearing [1] .

27. Other jurisdictions, including the courts and Tribunals Service, have developed a more risk-based and cost-effective approach to hearings management which we can adopt, adapt and benefit from. This includes better use of new technologies and enhanced performance management and support for panellists.

28. Further changes to our procedures may also help to reduce the time a case takes to reach a hearing and the time each hearing takes. This will also reduce the stress for everyone involved. The proposals which we are considering include:

a. more active and robust pre-hearing case management arrangements;

b. the introduction of legally qualified chairs in some or all cases;

c. a reduction in unnecessary review hearings where the parties agree the outcomes;

d. further streamlining the hearing procedure by removing the need to read out the allegations at the start of the hearing and greater use of written evidence.

Conclusions on the abolition of OHPA and the future of adjudication

29. We agree with the Government's assessment that establishing a new body to be responsible for the management of adjudication in fitness to practise cases is not proportionate in light of the reforms which have already been delivered within the GMC and the costs of the new organisation.

30. However we also recognise that while the current adjudication function is effective, achieving further separation between investigation and adjudication is possible. Additionally there is an opportunity to modernise our procedures to make them simpler and faster.

31. Some of the proposals will require a significant shift in our current approach and will have some financial impact for the GMC in the short term. However, in the long term, these improvements will increase public confidence in the profession and deliver an improved service and better value for money without the significant ongoing costs associated with an independent body.

32. We are currently consulting on the principles of reform until June 2011 and further details can be found on our website:

The abolition of PCTs and implications for the revalidation of doctors


33. Revalidation is the process by which doctors will have to demonstrate to the GMC, normally every five years, that they are up to date and fit to practise and complying with the relevant professional standards. The purpose of revalidation is to assure patients, employers and other healthcare professionals that licensed doctors are up-to-date and are practising to the appropriate professional standards.

34. The Responsible Officer (RO) will be the link between the local healthcare organisation and the GMC and as such they are an essential component of implementing revalidation. The RO will usually be based in and employed by the organisation in which the doctor works, or with which the doctor is contracted to provide services.

35. ROs also have a wider remit to make sure doctors are practising safely and that patients are receiving the best possible care from them. For example, the RO regulations require that they monitor doctors’ conduct and performance by regularly reviewing patient outcomes. They are also charged with investigating and dealing with concerns about doctors (which may or may not include escalating cases to the GMC). Their wider responsibilities will help to ensure their organisation’s clinical governance and patient safety systems are as strong as possible.

36. To revalidate a doctor, the GMC will require assurance from the RO that the doctor is practising to the appropriate professional standards as set by the GMC and that there are no known concerns about the doctor’s fitness to practise. ROs will base their recommendations on the outcome of a doctor’s annual appraisals over the course of five years, combined with information drawn from local clinical governance systems, including patient and colleague feedback.

Implications of the Bill for revalidation

37. The Department of Health’s (England) Responsible Officer regulations came into force on 1 January 2011. All ‘designated bodies’ that have a prescribed connections with doctors are now required to have a Responsible Officer in place. Designated bodies include primary care organisations.

38. The GMC expects revalidation to start in late 2012. Of course, this timetable will be dependent on NHS employers and other healthcare providers ensuring that they have the local systems in place to support the revalidation of their doctors.

39. The abolition of PCTs leaves a number of issues unclear, including where the performers list will be held, where the RO role in primary care will be based and how the role and functions of the PCT medical director will be exercised. This has implications for the revalidation of both GPs and locums.

40. Also, with the abolition of SHAs it is unclear how ROs will themselves be revalidated as it was anticipated that SHAs would provide an intermediate tier for the revalidation of Responsible Officers, clinical governance oversight and quality assurance. Furthermore, as ROs for trainees currently sit in deaneries within the SHAs, further clarity is needed as to where the RO for trainees will sit within the new system.

41. It is important that we continue to make progress towards the implementation of revalidation and this uncertainty is a cause for significant concern. These changes will have a direct impact on the successful implementation of revalidation given that it will restructure the revalidation routes for the vast majority of doctors at the time that revalidation is beginning to be rolled out.

42. The Department of Health (England) will be consulting on this issue in the summer of this year and we will be looking to work with the Department in order to resolve this issue.

The abolition of SHAs and implications for regulating medical education and training

43. The GMC sets standards for, and assures the quality of, all stages of medical education and training. This work underpins our objective to protect, promote and maintain the health and safety of the public.

44. We expect that further primary legislation will be introduced to Parliament at a later date which will lead to significant reform of medical education and training. In this memorandum we would however like to highlight the significant implications that the Health and Social Care Bill will have for medical education and training, particularly with regard to the abolition of SHAs.

45. The GMC works closely with the postgraduate medical deaneries within the SHAs. They are responsible to the GMC for quality management of placements and programmes, ensuring proper supervision and assessments and ensuring orderly recruitment, rotation and progression of trainees through their training programmes, often across a wide range of providers and units. Postgraduate Deans, on behalf of medical schools, are usually responsible for certifying that a provisionally registered doctor has met the educational outcomes that we set, so as to be eligible to apply for full registration. Postgraduate Deans have also played an important role in the remediation of trainees with fitness to practise problems, and have built up substantial expertise in this area, liaising closely with the GMC and other organisations.

46. Postgraduate deaneries carry out important functions. The proposal to abolish SHAs and the deaneries within them will therefore have wide reaching implications for the regulation of medical education and training.

47. The Government’s proposals for dealing with these issues are outlined in Liberating the NHS: Developing the Healthcare Workforce, including the transfer of the functions of SHAs to healthcare provider skills networks with a stronger multi-professional approach. It is also proposed that an organisation called Health Education England (HEE) will be created, which will focus on workforce issues that need to be managed nationally. HEE will take on the advisory role of Medical Education England and the professional advisory boards for education and training. Its functions will include championing the greater involvement of patients and local communities in planning and developing the workforce.

48. We welcome the proposed new duty on all NHS organisations to provide high quality training. To make that happen, however, there needs to be proper checks and balances within the new system. This should include an ‘education champion’ at local level alongside a clear employer voice.

49. We also have some concerns about the speed of these changes, the potential instability during the transition to the proposed new system and the impact on quality management of medical education and training during this period.

50. During the transition, SHAs will have a role to develop coherent plans, building on existing arrangements where possible, and agreeing with healthcare providers the leadership and accountability arrangements.

51. The transition to this new system will be challenging, particularly given the timescale of putting in place new systems and processes by 2012 to take on functions of SHAs before they are abolished. This is a particular concern given that legislation to create HEE will not be introduced until a later date.

52. Careful thought and planning is therefore essential. We wish to emphasise the need to manage the transition in order to ensure that training programmes are not disrupted to the detriment of existing students and trainees, and that the knowledge of staff, especially within deaneries, is not lost. Stability and continuity of delivering safe, patient care and training programmes is a priority.

53. We also believe that the new arrangements need to recognise the pivotal role of the professional regulator in setting and assuring educational standards, and for there to be a clear line of accountability to the GMC from the new local skills networks.

54. The GMC will be responding to the Developing the Healthcare Workforce consultation by 31 March 2011. A copy of our submission can be obtained on request.

March 2011

[1] Fitness to Practise Adjudication for Health Professionals: Assessing different mechanisms for deliver y – Impact Assessment (Department of Health, August 2010) — T able 1 of the impact assessment.

[2] Pe rformance review report 2009/10 — Enhancing public protection through improved regulation (CHRE, July 2010)

[1] Fitness to Practise Adjudication for Health Professionals: Assessing different mechanisms for deliver – Impact Assessment ( De partment of Health, August 2010)

[1] During the period January to June 2008, the average number of sitting days per closed hearing each month was 5.46 days. This increased to 5.5 days in the same period in 2009. In 2010 it rose to 6.41 days.