Written evidence from Medical Defence
Union (REV 31)
1. The Medical Defence Union (MDU) is the oldest
and largest of the UK's medical defence organisations (MDOs).
We are a non-profit making mutual membership organisation with
members in the UK and Ireland. In the UK we provide a wide range
of medico-legal benefits to our members who are over 50% of doctors
in hospital and primary care. Among the benefits of membership,
the MDU's medical members receive advice and assistance with matters
such as complaints procedures, investigations by the General Medical
Council, disciplinary investigations by their employer or contracting
body, inquests, public inquiries and many other matters arising
from their treatment of their patients.
2. We expect members will seek our assistance
with medico-legal problems arising from the introduction of Responsible
Officers (ROs) from 1 January 2010 in England, Scotland and Wales
(and 1 October 2010 in Northern Ireland), and revalidation when
it is introduced throughout the UK. On behalf of members we have
taken part in working groups set up by the Department of Health
to consider the key proposals and plans arising out of the 2007
White Paper Trust Assurance and Safety, and more recently
we have responded to consultations on draft legislation for ROs
and on proposals for revalidation.
3. Our submission to the Health Committee covers
the main points we raised in the GMC's recent consultation on
its plans and proposals for revalidation. Since we submitted comments
in June 2010, the GMC has responded to that consultation and we
were pleased to see that its response document quotes from the
MDU's response and takes up key themes we raised on behalf of
members. We expect to continue to discuss the GMC's proposals
for revalidation as they emerge and to represent our members'
interests in this process. The areas we believe need particular
consideration are:
EXECUTIVE SUMMARY
Role of Responsible Officers
4. The MDU believes that one of the most difficult
aspects of revalidation will be the role of the Responsible Officer
(RO). We realise that ROs are outside the GMC's control, but they
will be crucial to the success of revalidation. Their relationship
with the doctors for whom they are responsible will need to work
smoothly and without problems. However, the MDU has misgivings
about a number of aspects of the role of the ROs as set out in
the Department of Health's recent consultation on ROs and the
draft regulations (which are currently before Parliament). In
short, we do not believe that the proposed role for ROs provides
enough safeguards for a robust procedure when the ability of a
doctor to revalidate and to remain licensed to practise is at
stake. Our main concerns relate particularly but not exclusively
to robustness and fairness (or otherwise) of the procedures to
investigate concerns, and the potential for conflicts of interest
between ROs and doctors for whom they are responsible.
5. The GMC referred to the MDU's concerns in
its consultation response and has pledged to consider how it will
best support ROs in future to "manage concerns about the
practice of individual doctors early and effectively". This
will be crucial to the eventual success of revalidation.
SPECIALTY FRAMEWORKS
AND INFORMATION
REQUIRED FROM
DOCTORS
6. In the interests of fairness and consistency
the revalidation requirements must be, as far as is possible,
equally demanding upon all doctors. The MDU believes the emphasis
must be on greater consistency of requirements between specialties,
possibly by standardisation of requirements in core areas of practice
and moving even towards a more unified framework for a number
of related specialties. We also understand that some of the frameworks
require the setting up of procedures or collecting of information
that is not routinely collected, even in a well-managed environment.
It would seem appropriate therefore, for the frameworks to concentrate
on collection and collation of information that is currently available
within that specialty, and in other specialties, than to require
new procedures and processes to be set up in order to provide
material necessary. Some types of information will be easier to
collect and collate for revalidation if they are the same data
sets that the employer or contractor has to provide for another
purpose, for example to a healthcare regulator.
7. The GMC referred to the MDU's concerns in
its consultation response and has agreed that the specialty frameworks
need to be streamlined to make them more straightforward, proportionate
and realistic. It further agrees that the focus should be on identifying
the information that can be readily collected using existing systems.
It will be important to get this right if revalidation is to succeed.
FAIRNESS TO
DOCTORS AND
CONSISTENCY OF
PROCESS
8. There are a significant number of doctors
who are not in managed environments and who are not currently
undertaking regular appraisal or collecting supporting information
such as evidence of CPD. It is important, in the interests of
fairness to all, that the GMC outlines the minimum requirements
that doctors will have to fulfil as early as possible so that
any doctors who are not currently in a position to provide such
information can put systems in place to allow them to do so. Doctors
must have an equal opportunity to collect sufficient evidence
before they are required to revalidate.
MDU SUBMISSION
Responsible Officers
9. The MDU believes that one of the most difficult
aspects of revalidation will be the role of the Responsible Officer
(RO). We realise that ROs are outside the GMC's control, but they
will be crucial to the success of revalidation. Their relationship
with the doctors for whom they are responsible will need to work
smoothly and without problems. However, the MDU has misgivings
about a number of aspects of the role of the ROs as set out in
the Department of Health's recent consultation on ROs and the
draft regulations (currently laid before Parliament). In short,
we do not believe that the proposed role for ROs provides enough
safeguards for a robust procedure when the ability of a doctor
to revalidate and to remain licensed to practise is at stake.
Our main concerns relate particularly but not exclusively to robustness
and fairness (or otherwise) of the procedures to investigate concerns,
and the potential for conflicts of interest between ROs and doctors
for whom they are responsible.
10. If the concerns that the MDU outlined in
our RO consultation response are not resolved by the time ROs
are introduced there is the potential for considerable practical
difficulties that may inhibit revalidation and that will need
to be resolved before doctors can revalidate. While it will be
in the interests of doctors, and a GMC requirement, to ensure
they revalidate successfully, this must be balanced against their
rights to a fair procedure that takes proper account of their
rights during a process that could ultimately lead to their being
removed from the register. The MDU will do what we can to assist
members in the hope that the procedure may run smoothly, but we
point out our concerns as the role of ROs may be a significant
obstacle to successful revalidation for some doctors.
11. To give an example of the potential for conflict
between the doctor and the RO: there may be a difference of opinion
between the two as to whether the doctor has provided sufficient
information for a decision in favour of revalidation. The doctor
may consider that he or she has, and the RO may take a different
view. It is not clear in such a circumstance how such a difference
of opinion will be resolved. Will it be for the RO appeals process
(which is designed to challenge the appointment of the RO rather
than any decision the RO makes), or a matter for the GMC to decide
on the basis of the evidence that the doctor believes is adequate
because it meets the revalidation requirements that are clearly
set out?
12. To ensure there is complete consistency of
decision making on behalf of ROs, there must be no room for doubt.
There will need to be clear guidance right from the start to make
it clear, for example, what standards are expected of doctors.
The same standards must be applied to all doctors and, while there
must be flexibility to allow for different types of practice within
the same specialty, doctors must not be penalised because their
RO has a more prescriptive interpretation of the standards than
an RO in a neighbouring trust or PCT.
Information required from doctors
13. We discussed the proposed specialty frameworks
in the GMC consultation document with our Council members who
are senior clinicians in most major specialties and primary care
to seek their views as practising clinicians. Their view was that
most of the frameworks as provided would require disproportionate
effort from clinicians who are already working to capacity and
that the frameworks needed more work. The requirements set out
differed considerably between specialties and some of the frameworks
would appear to require far greater effort from clinicians in
certain specialties than is required of those in other specialties.
14. This is not the MDU's area of expertise as
the decisions on standards must be clinical, but in the interests
of fairness and consistency the revalidation requirements must
be, as far as is possible, equally demanding upon all doctors.
We believe the emphasis must be on greater consistency of requirements
between specialties, possibly by standardisation of requirements
in core areas of practice and moving even towards a more unified
framework for a number of related specialties. We noted that the
GMC highlighted this concern of ours in its revalidation consultation
response as a matter for consideration and we believe the development
of a clear and realistic set of specialty frameworks is central
to the success of revalidation.
15. We understood that some of the frameworks
required the setting up of procedures or collecting of information
that is not routinely collected, even in a well-managed environment.
It would seem appropriate therefore, for the frameworks to concentrate
on collection and collation of information that is currently available
within that specialty, and in other specialties, than to require
new procedures and processes to be set up in order to provide
material necessary. Some types of information will be easier to
collect and collate for revalidation if they are the same data
sets that the employer or contractor has to provide for another
purpose, for example to a healthcare regulator.
Fairness to doctors
16. There are a significant number of doctors
who are not in managed environments and who are not currently
undertaking regular appraisal or collecting supporting information
such as evidence of CPD. It is important, in the interests of
fairness to all, that the GMC outlines the minimum requirements
that doctors will have to fulfil as early as possible so that
any doctors who are not currently in a position to provide such
information can put systems in place to allow them to do so. Doctors
must have an equal opportunity to collect sufficient evidence
before they are required to revalidate.
17. The introduction of revalidation must be
fair for all doctors and at present it is clear there are many
areas where local systems are not sufficiently developed and robust
enough to support revalidation. While we understand the argument
for making a start with revalidation by introducing it in some
areas rather than others, given the potential severity of the
outcome for doctors who fail to revalidate, they must not be put
at a disadvantage because of their location or specialty and the
requirements should apply to all equally. No doctor should be
required to revalidate if the local systems and procedures are
not in place, not least because most doctors are not in a position
to influence such changes. In the first instance it may be fairer
to set a date for all organisations to have appropriate systems
and procedures in place and to check that they are robust. Thereafter
revalidation could be phased in by whatever means is considered
fairest - presumably after further consultation.
18. This is particularly important because our
concerns about ROs (whose role will be fundamental to the success
of revalidation) relate to uncertainties about the role of ROs
themselves, and not their location or specialty or similar factors.
Any problems that may occur with ROs would be as likely to happen
in healthcare organisations that already have robust systems and
procedures in place in respect of revalidation as in those that
don't. Thus it cannot be assumed that because an organisation
has appraisals and other procedures in place, the doctors who
work there will necessarily be ready to begin to revalidate.
19. It is a little too early yet, but the deadlines
for revalidation need to be announced as early as possible to
allow organisations and individual doctors to prepare. The deadlines
need to be clear as does the course of action to be followed by
organisations that do not make these deadlines. The MDU's concern
is that most doctors, who may be keen to revalidate, may not be
in a position to influence the readiness or otherwise of their
organisation to provide information that these doctors need to
meet a revalidation deadline. These doctors should not be penalised
because their organisation fails to provide information they need
to rely on. Consideration needs to be given to alternative arrangements
for doctors who are in this position.
Protecting doctors' rights
20. It must be very clear that details of an
individual doctor's revalidation will be confined only to the
doctor, his or her appraiser and the RO (and his or her support
team). Information from the appraisal process must not be shared
with others unless necessary - for example, with the employer
or bodies with defined roles such as the GMC or NCAS. There is
no role for anyone else as the process is a private matter and
all information about the doctor must be treated as confidential.
We see no role for GMC affiliates to get involved in individual
cases or to be given information relating to individual doctors,
indeed it would be inappropriate for them to do so. For example,
it would be appropriate for a GMC affiliate to advise an RO on
the threshold for Fitness to Practise referrals, but that person
must not be given details of identifiable individuals. Similarly
RMRSTs must not be provided with information about individual
doctors and should confine discussions only to principles.
21. Just because certain bodies or individuals
think they should be given information about an individual doctor's
revalidation does not mean they have any right to such information.
It must be very clear in any guidance that doctors have a right
to confidentiality. A fair process will ensure information about
them is shared only with those who have a right to see it.
22. In summary, the MDU believes that revalidation
should be based as closely as possible on existing information
and processes to minimise the need to introduce additional administrative
burdens for doctors and for employers/contracting bodies supplying
the information. We will work with the appropriate organisations
to try to achieve this on behalf of our members.
November 2010
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