Protection of Freedoms

Memorandum submitted by the General Medical Council (GMC) (PF 73)


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 Protection of Freedoms Bill we focus on Part 5 Chapter 1, which amends the Safeguarding of Vulnerable Groups Act 2006 (the SVGA) and the framework that this provides for the Vetting and Barring Scheme operated by the Independent Safeguarding Authority ("ISA").

3. The GMC has experienced a number of issues in implementing our responsibilities under the SVGA and we therefore welcome the move to address these issues through reforming the legislation. We do, however, have a number of concerns about the Protection of Freedoms Bill which are outlined in this submission.


4. The SVGA introduced an obligation on the GMC (and other regulators) to refer prescribed information to the Independent Safeguarding Authority (the ISA). Section 41 of the SVGA provides, in very general terms, the conditions that must be met before a referral to the ISA needs to be made.

5. Due to the complexity of the legislation and the broad nature of the criteria, we have faced a number of difficulties in implementing the duty to refer under Section 41 of the SVGA. One interpretation of the SVGA would involve referral of all doctors where we have issued a warning or sanction under our fitness to practise procedures, in addition to auto-bar offences. This would capture cases that raise no safeguarding concerns (e.g. purely clinical cases). We estimate that the resource implications of operationalising our duty to refer on this basis would result in approximately 20 referrals per week, which we consider to be disproportionate.

6. In 2009/10, together with the other health and social care regulators, we therefore raised concerns with the Department of Health and the ISA about the need for clarification of the referral criteria and worked closely with the ISA to develop detailed guidance on the interpretation of the May Bar test and Harm Test. The guidance agreed with the ISA has been helpful and has supported the referral of appropriate cases. A key principle underpinning this guidance is that we will not refer matters that are purely clinical in nature or arise solely from the doctor’s competence as a doctor because it seems reasonable to assume in such cases that any action taken by the GMC is sufficient to mitigate the risk of future harm. We have now trained our staff to assess cases on this basis and referrals to the ISA to date have resulted in a decision to bar in less than 50% of cases.

7. Although the Protection of Freedoms Bill replaces the duty to refer with a power, the need for clarification about the referral criteria remains. While we have reached agreement with the ISA about which individuals to refer, it would however be preferable for the legislation to reflect the agreed position. It is therefore a concern for us that the current proposed amendments in the Protection of Freedoms Bill do not tackle this issue.

Harm Test

8. Under Clause 41(2)(c) of the SVGA the GMC has a duty to refer under the Harm Test where there is a risk of harm to a child or vulnerable adult. This provision is however so broad that a strict interpretation would be likely to result in referral of the majority of cases which we receive.

9. The ISA has therefore specified that we should only make a referral under the Harm Test where there has been no act or omission but a doctor has communicated something about their thoughts, beliefs or attitudes to indicate that they pose a future risk of harm directly in relation to children and vulnerable adults. In addition, the ISA have asked us to use the Harm Test to refer Relevant Conduct cases that for technical reasons do not strictly meet the Relevant Conduct criteria because the conduct occurred overseas or we have not concluded our fitness to practise process but we consider the doctor to pose a risk to children or vulnerable adults.

10. In 2010, we assessed all cases with extant sanctions against the relevant conduct and harm test criteria. As a result, we were required to assess almost 600 cases under the Harm Test which did not meet the Relevant Conduct criteria. This exercise to date has resulted in five cases being referred to the ISA which is 0.8% of the cases we assessed. All these cases related to Relevant Conduct which did not strictly meet the Relevant Conduct criteria because the cases related to overseas conduct or cases where we had not completed our fitness to practise process. None of the cases related to harmful thoughts, beliefs or attitudes. This suggests that it may be a more proportionate approach to amend the Relevant Conduct criteria to include overseas cases and cases where we have not completed our fitness to practise process but we believe the doctor poses a risk and to remove the Harm Test which relates to harmful thoughts, beliefs and attitudes.


11. We believe that there are a number of areas within the Protection of Freedoms Bill which relate to the sharing of information between the ISA and the professional regulators that are unclear and which could be clarified during the passage of the Bill.

12. The current Sections 43 and 44 of the SVGA places duties on the Secretary of State and the ISA to notify professional regulators of any decision taken to bar an individual who is on their register, and the reasons for that decision. Unfortunately, these provisions have not been enacted, and will not now come into force until the Protection of Freedoms Bill receives Royal Assent.

13. We are concerned that the current restrictions on information sharing between the ISA and the professional regulators as a result of the delay in implementing these provisions may harm public confidence. At present, through an informal agreement with the ISA, we are receiving notification of barring decisions in relation to registered doctors. On average we receive notification within 45 days although there are some cases which take longer, the oldest being two cases which remain outstanding after 47 weeks. Under current legislation the ISA is not able to provide us with any information about the reasons for their decision, even where this may involve concerns that are unknown to us, and that may impact on a doctor’s fitness to practise.

14. We also have a number of concerns about the proposed arrangements for disclosure. Clause 74(3) of the Protection of Freedoms Bill requires the ISA to notify professional regulators if it ‘knows’ or ‘thinks’ that an individual may be a registered professional. We suggest that it may be helpful for the ISA to establish beyond doubt, in all cases, whether or not an individual is engaged in regulated activity prior to making a barring decision. Firstly, this would enable the ISA to seek disclosure from the relevant regulatory bodies and ensure they have access to the full range of information which may inform their decision to bar. Secondly, this would ensure that all interested regulatory bodies are always notified of a decision to bar an individual registered with them, and provided with the reasons for that decision, so that they can take appropriate action.

15. We would be happy to consider ways to facilitate information sharing to support this aim. Where the ISA has not established the registered status of an individual and has therefore been unable to exercise its duty to notify us of a doctor’s status, we will need a means of proactively checking the status of our registrants. The provisions in the Bill are unclear about how this might work and we would like reassurance that we will not be charged for making an application for this information. With 240,000 registrants, this would clearly present a significant obstacle to us obtaining that information and could pose a patient safety risk.

May 2011