Annual accountability hearings: responses and further issues - Health Committee Contents


Appendix 3: Government's Response - Annual Accountability Hearing with the General Medical Council

Introduction

On 26 July 2011, the House of Commons Health Committee (the Committee) published the report: Annual Accountability Hearing with the General Medical Council (GMC).

The driver for the hearing was a recommendation made in the Health Select Committee's Fourth Report on Revalidation of Doctors, published on 8 February 2011, in which the Committee said that it intended to exercise, on behalf of Parliament, the power nominally held by the Privy Council to hold the General Medical Council (GMC) to account.

The Department strongly believes that these hearings are of great value in strengthening the accountability of the professional regulatory bodies to Parliament and the wider public.

Departmental response

We welcome this report and have carefully considered the Committee's recommendations and the issues it raises. The Government's Command Paper, 'Enabling Excellence: Autonomy and Accountability for Health and Social Care Staff', published on 16 February 2011, set out a comprehensive strategy for ensuring that professional regulation system is robust and proportionate.

The Government's response to each of the recommendations made in relation to the GMC is shown below. Though many of the Committee's recommendations were clearly for the GMC to take forward, we have commented on all recommendations.

Introduction

Recommendation Para 4

Although, therefore, the Committee recognises that the GMC achieves a high level of operational competence, it remains concerned that the leadership function of the GMC within the medical profession, and within the wider health community, remains underdeveloped particularly in the areas of fitness to practise, revalidation, education and training and voluntary erasure. We hope that the GMC will embrace more ambitious objectives for professional leadership, some of which are described in this report.

Response

The Government understands the comments of the Committee on this issue and agrees that the GMC should take a strong lead in carrying out its statutory duties. In doing so, however, it needs to continue to see its primary purpose as public protection and public service, and not as a body that represents the profession.

Revalidation

Recommendation Para 11

The work undertaken by the Society of Cardiothoracic Surgery of Great Britain and Ireland in setting standards for that part of the medical profession is commendable. Its transparency will be welcomed by patients and should be a template (where clinically relevant) for further refinement of the revalidation process.

Response

The Government agrees that the work undertaken by the Society of Cardiothoracic Surgery of Great Britain and Ireland in publishing their outcomes data is commendable. The Society has been collecting outcome data since 1977 and has continued to develop sophisticated systems in line with technological advances, with the patient being integral to the process.

This approach of patient-focussed care with open publication of results sits comfortably within the aspiration of the White Paper 'Equity and excellence: liberating the NHS.'

The Government is pleased to note that the GMC will continue to have discussions with the Society of Cardiothoracic Surgery of Great Britain and Ireland so that the regulator, employers and the profession can benefit from their ongoing work.

In addition to this standard-setting for individual practitioners, the Committee will wish to note that responsible officers in England have a duty to ensure the robust, efficient and reliable functioning of systems of clinical governance. The focus on clinical governance systems should be on quality improvement, in terms of the quality of care not only delivered by each doctor but also by the entire team of which the doctor is part.

The Academy of Medical Royal Colleges is working with the individual medical colleges to produce guidance on the supporting information relevant for appraisal discussions and revalidation for each specialty. It supports the White Paper's vision for the NHS to focus on delivering improved health outcomes for patients. The NHS Outcomes Framework 2011/12 sets out how this will b e achieved. The Government's Transparency and Open Data commitments for Health and Adult Social Care also support the publication of clinical outcomes data across a range of healthcare conditions.

In future, the revalidation decision will be based on a series of annual appraisals with doctors using supporting information to demonstrate they are continuing to meet the principles and values set out in the General Medical Council guidance, Good Medical Practice.

The General Medical Council (GMC) has recently published its expectations of doctors in terms of the six types of supporting information that the doctor would be expected to provide and discuss at appraisal. They include CPD, significant events, feedback from colleagues, patients (where applicable), reviews of complaints and compliments and quality improvement activity. Quality improvement activities include evidence of effective participation in clinical audit or an equivalent quality improvement exercise that measures the care with which an individual doctor has been directly involved, reviews of clinical outcomes where robust, attributable and validated data are available. This could include morbidity and mortality statistics or complication rates where these are routinely recorded for local or national reports.

Recommendation Para 12

The GMC clearly has a considerable amount of work to undertake between now and the implementation of revalidation in 2012. Although we agree that all disciplines will not have developed their standards to an advanced level by that date, the GMC needs to accelerate its work with the medical royal colleges to further refine the standards for revalidation in specialist areas and to ensure that the process is meaningful to clinicians and transparent to the public.

Response

The Department recognises that the GMC has made significant progress in driving forward revalidation since the last Health Select Committee report on the 'Revalidation of Doctors' published 8 February 2011. Revalidation remains the number one priority in the GMC Business Plan for 2011.

The GMC has confirmed to its Council and the Health Select Committee that it continues to develop its own internal processes and governance arrangements so that it can be ready to accept recommendations and make revalidation decisions from the end of 2012.

The GMC has also confirmed to the Health Select Committee that it has accelerated its work with the Academy of Medical Royal Colleges and individual colleges to define the speciality specific guidance for each item of supporting information. A number of the medical colleges have produced draft guidance and consultations are currently underway.

The GMC has recently published guidance on developing, administering and implementing patient and colleague questionnaires for revalidation. The Government welcomes patient and colleague involvement in the revalidation process. In England, the NHS White Paper Equity and excellence: liberating the NHS aims to put patients at the heart of the NHS and to strengthen the collective voice of patients.

Recommendation Para 14

As the GMC states, some doctors may decide to retire rather than undergo the process of revalidation; of those who pursue revalidation, some may require retraining and some may fail to meet the required standards. The GMC needs to ensure that it monitors the number of doctors who retire, leave the profession, have conditions placed on their practice or fail revalidation. It must develop and share this evidence with employers to ensure that future workforce planning includes the developing outcome of the revalidation process.

Response

The Government agrees with the Health Select Committee's recommendation. We will look to the GMC to develop and share this evidence to inform future workforce planning.

Recommendation Para 15

Of the Officers who will have to make recommendations about revalidating doctors, only a minority feel that the process will help with the early identification of doctors with performance issues. Early identification of problem doctors is a core task of the professional regulatory system, and the GMC needs to ensure that its systems of appraisal and revalidation achieve this task.

Response

The introduction of responsible officers in January 2011 has been an important change in clinical governance and key to putting in place the building blocks for introducing medical revalidation.

The Department's view is that dealing with doctors whose conduct and performance is a cause for concern is primarily a clinical governance issue and is usually best dealt with at a local level. For the small proportion of doctors about whom there may be concerns, the strengthening of local clinical governance and a more objective annual appraisal provides the means for identifying problems earlier and either putting in place remediation or, if not possible, taking steps to remove them from clinical practice.

The clinical governance functions of responsible officers in England are set out in Part III of the Medical Profession (Responsible Officers) Regulations 2010. These include monitoring conduct and performance of doctors, reviewing performance information and identifying any issues which emerge from that, as well as ensuring the organisation concerned takes steps to address any such issues. Where concerns arise in relation to individual practitioners, the responsible officer has powers to initiate investigations and ensure that suitable action is taken.

Training for those doctors appointed as responsible officers is underway and covers the statutory responsibilities and provisions of the role, obligations on a designated body to resource the responsible officers' work and how to deal with potential conflicts of interest or appearance of bias. Training also addresses monitoring of clinical quality and performance, identifying concerns and quality assurance processes to support appraisal systems and organisational governance. The training will be completed for all responsible officers by the end of the year.

Responsible officer networks are established to ensure ongoing support is available, local expertise is shared and that thresholds for intervention and management of conflicts of interest are consistent.

In addition, the GMC has also appointed Employment Liaison Advisers who will work with responsible officers and organisations to provide advice and guidance on specific cases of poor conduct and performance to ensure that issues are managed at the most appropriate level.

We understand that the GMC is in the process of developing guidance for responsible officers, which will build on existing advice for Medical Directors and other health professionals about the types of concerns that should be referred to the GMC.

Recommendation Para 18

The Committee notes the negative media reports about the time taken to undertake revalidation and hopes that the GMC will ensure that lessons are learned from the revalidation pilots, particularly in how it can support locum doctors. It also needs to ensure that the underlying processes that doctors are expected to undertake are not unwieldy and overly time-consuming, and that they are an effective means of gathering the required evidence.

Response

The Revalidation Pathfinder Pilots concluded in March 2011. The independent evaluation report was published in July 2011 and has provided significant data for partners to take forward to ensure that the final model for revalidation is proportionate, affordable and streamlined, whilst adding value for both patients and doctors.

The report noted a number of areas that need further exploration and testing but the overriding message was that pilot organisations recognise the importance of appraisal and revalidation in delivering high standards of care. The report revealed that 96 per cent of pilot organisations expect revalidation to lead to improved quality of care, 82 per cent expect improvements to patient safety and 80 per cent expect improvements to patient experience.

Eighty-six per cent of doctors appraised in the pilot felt that their appraiser performed their appraisal well and 91 per cent felt that their appraisal was objective.

The GMC's consultation findings on revalidation (published 18 Oct 2010) demonstrate that doctors value a common approach to appraisal and one that is both clear and straightforward. In response, the GMC published in April 2011, 'Good Medical Practice Framework for appraisal and revalidation' setting out the broad areas which should be covered in medical appraisal and on which recommendations to revalidate doctors will be based. The Framework is based on Good Medical Practice.

At the same time the GMC also published 'Supporting information for appraisal and revalidation', which sets out its expectations of doctors in terms of the six types of supporting information that the doctor would be expected to provide and discuss at appraisal. The medical Royal Colleges, Faculties, and many of the specialty associations are providing guidance on how this supporting information applies in specialist practice.

The Revalidation Support Team (RST) has produced clear and effective appraisal guidance in the form of a draft Medical Appraisal Guide (MAG). It underpins the two GMC guidance documents described above. In response to requests from the medical community, the RST has published the MAG on its website and is seeking feedback. It is available for all organisations to use, should they wish, but will also be formally tested during this year. A final version will be published in early 2012, taking account the evaluation findings and feedback from employers and the profession. The guide will lie at the centre of appraisal and revalidation, ensuring a consistent approach for all doctors, regardless of where they work.

The additional year of testing announced by the Secretary of State in his letter of June 2010 to the GMC, in response to the revalidation consultation will widen the scope to test whether the model is applicable to doctors working across different environments, specialties and with varied work patterns. It will test the proposed model with SAS doctors, doctors in training, locums in secondary care and clinical academics.

It will provide the robust data to determine a model that is straightforward and proportionate, applicable for all doctors and not place excessive burdens on doctors or employers.

Recommendation Para 21, 22 and 23

Doctors from the European Economic Area and Switzerland seeking to practice in the UK cannot routinely be language and competence tested by the GMC.

The GMC along with the Government is working towards resolution of this with partner organisations across Europe. The Committee takes the view that current legal framework is at odds with good clinical practice, which is clearly unacceptable. The GMC has plans, within the boundaries of UK law and the EU Directive, to manage the constraints on language and competence testing by using the Responsible Officer role to establish that EEA (the EU plus several other European countries) doctors are fit to practise in the UK. The Committee accepts this way forward as a short term measure.

Although this short term measure is welcome, the committee believes that public confidence in the medical profession requires the issue to be addressed authoritatively. It is clearly unsatisfactory that the competence to practise of health professionals should be assured by a work-around, and we look to the government, GMC and the relevant European bodies to work as a matter of urgency to produce a long-term solution to this problem.

Response

Employers and those contracting with healthcare workers can and should verify the language knowledge of any person they appoint, but we recognise the need for a stronger, more effective, system of checks on all doctors.

The Department has worked closely with the GMC to produce a proposal for a strengthened system of local checks on the suitability of doctors, which will include consideration of their communication skills.

We have already taken steps to strengthen the current system and as of 1 January 2011, all designated bodies must nominate or appoint a responsible officer.

Responsible officers in England have a duty to ensure that medical practitioners have qualifications and experience appropriate to the work to be performed and that appropriate references are obtained and checked.

Our intention now is to work with a wide range of partners including the European Commission and the Devolved Administrations to develop a proportionate new system of checks through enhanced duties on responsible officers to ensure that any person appointed to a medical post has the necessary skills for the role, before they take up post.

The European Commission has consulted on the possibility of a change in the relevant European law in a recent Green Paper, with firm proposals due before the end of 2011. The Government sought evidence of the extent of concerns about the issue as part of the consultation and the UK's response to the consultation will be published shortly.

Fitness to Practise

Recommendation Para 27

The Committee notes that there is an increase in referrals of doctors to the GMC, and of nurses to the NMC, as well as an increase in the number of general NHS complaints. The Committee welcomes the fact the GMC has commissioned research into this phenomenon in order to better understand what is driving this increase, and to ensure that their systems and processes are adequate for meeting the future needs of the public. We look forward to reviewing the preliminary findings of this with the GMC at our next accountability hearing.

Response

The Department supports the GMC's ongoing research to understand the increase in fitness to practise referrals. The Department looks forward to learning of the GMC's findings, and any associated action plan. We are conscious that the causes of the rise in fitness to practise referrals are not yet fully understood, are likely to be being influenced by complex and multiple factors, and so the work which the GMC is doing to understand the causes is very important.

Recommendation Para 29

The Committee welcomes the ongoing good performance of the General Medical Council (GMC) in resolving 90% fitness to practise cases within fifteen months. However, we agree with the GMC that fifteen months is indeed too long to conclude such cases and we recommend that the Council for Healthcare Regulatory Excellence (CHRE) their regulatory body should set the GMC a more demanding target for future years.

Response

The statutory role of the Council for Healthcare Regulatory Excellence (CHRE) is to scrutinise and oversee the work of nine regulatory bodies, including the GMC. In undertaking this function, CHRE reviews whether the regulatory bodies meet their statutory functions and provide best practice guidance for the regulators. CHRE does not have the powers to set targets as such in relation to the regulators' performance of their statutory functions. We understand that the target referred to by the GMC is an internal performance measure.

CHRE are, however, in the process of working with all the regulatory bodies in the development of a common data set of key performance indicators, in order to allow the comparative performance of the regulators across a range of areas to be more readily compared.

The Department is collaborating with the GMC to produce revised legislation that will enable more efficient handling of fitness to practise cases at hearing stage. Following full, public consultation, the GMC Council reviewed proposals for changes to the GMC's fitness to practise adjudication function, on 19 July 2011. These proposals include changes to procedures, including changes to pre-hearing case management, which should help reduce the time a case takes to reach a hearing and the time each hearing takes.

Recommendation Para 35

Some of the decisions made by fitness to practise panels of the GMC defy logic and go against the core task of the GMC in maintaining the confidence of its stakeholders. Furthermore, they put the public at risk of poor medical practice.

Response

The Department notes the findings of the Committee regarding the GMC's decisions in fitness to practise cases.

A number of proposals to strengthen the independence and quality of the GMC's fitness to practise panels - by setting up a Medical Practitioners' Tribunal Service (MPTS) - were subject to full public consultation conducted by the GMC from March-June 2011, and subsequently agreed by the GMC Council. Departmental officials are working with the GMC to take this work forward through changes to legislation.

As part of the CHRE function in overseeing the performance of the regulators, including the GMC, it reviews all final decisions made by the regulators' fitness to practise committees. CHRE has the power to refer those decisions to court if they consider them to be unduly lenient or if the decisions do not protect the public. Available statistics show that very few cases decided by GMC panels present such concerns.

Recommendation Para 36

The GMC holds the dual but potentially conflicting roles of prosecutor and adjudicator in fitness to practise cases. The GMC proposes to establish an Independent Medical Practitioner Tribunal Service to create a greater separation between these functions, and the Committee supports this proposal. We also urge that performance management of fitness to practise panellists commence as soon as is practicable.

Response

Departmental officials are working with the GMC to take forward the proposed move towards the MPTS to separate further the GMC's investigation and adjudication functions.

A number of proposals concerning the setting up of the MPTS were subject to full public consultation from March-June 2011, and subsequently agreed by the GMC Council. Departmental officials are working with the GMC to take this work forward.

Many proposals under consultation fall squarely within the GMC's remit to implement through changes to secondary legislation. It is right that the GMC should make changes in order to improve its functions.

Where proposals require a change to primary legislation, the Department will seek approval from the Privy Council and Parliament under section 60 of the Health Act 1999, which would be subject to a separate consultation exercise and Parliamentary debate. This piece of work is scheduled for completion by the end of 2013.

Matters relating to the performance management of fitness to practise panellists are for the GMC.

Recommendation Para 40

The GMC currently has no right of appeal over decisions made by independent fitness to practise panels. The Committee does not seek to undermine the existing power of appeal held by the Commission for Healthcare Regulatory Excellence, but agrees that the GMC needs also to have a right of appeal in cases where it thinks panellists have been too lenient. We urge the Government to move quickly to make the necessary legislative amendments.

Response

The Department notes the Committee's recommendation that the GMC should have a right of appeal.

Following full public consultation by the GMC, and subsequent agreement by the GMC Council, Departmental officials are working with both the GMC and CHRE to consider the potential for the GMC to be given such a right of appeal in legislation.

Recommendation Para 43

Doctors from Mid Staffordshire NHS Foundation Trust whose practice was in itself blameless but who failed to act and raise concerns about colleagues are now also under investigation by the GMC. A clear signal needs to be sent by the GMC to doctors that they are at as much risk of being investigated by their regulator for failing to report concerns about a fellow registrant as they are from poor practice on their own part.

Response

There is a current and long standing professional duty upon doctors to act upon/report any concerns they have about a colleague's practice. Paragraphs 43-45 of Good Medical Practice "Conduct and performance of colleagues" provides details about how the GMC expects its registrants to behave where they have concerns.

It would also be open to doctors to refer concerns about NHS organisations or management through a public interest disclosure to the Care Quality Commission (CQC) or Monitor.

The NHS Constitution draws attention to the protection available to staff and the handbook to the constitution specifically cites the Public Interest Disclosure Act 1998 and staff rights to "protection from detriment in employment and the right not to be unfairly dismissed" under the Act.

Recommendation Para 44

The Committee recognises, however that doctors and other practitioners who have raised concerns by other staff have sometimes been subject to suspension, dismissal or other sanctions. The Committee therefore intends to examine this issue in more detail in due course.

Response

There is a long standing professional duty where a doctor has good reason to think that patient safety is or may be seriously compromised by inadequate premises, equipment, or other resources, policies or systems, to put the matter right if that is possible.

In all other cases, they should draw the matter to the attention of their employing or contracting body. If that body does not take adequate action, the doctor raising the concern should take independent advice on how to take the matter further. The doctor must record their concerns and the steps they have taken to try to resolve them. This is set out in Good Medical Practice at paragraph 6.

The Public Interest Disclosure Act 1998 inserted provisions into the Employment Rights Act 1996 (sections 43A-L) which is owned by the Department for Business, Innovation and Skills. It forms part of the wider employment rights legislation and gives the legal protection to all staff (employees and workers as defined in the Act) who make qualifying disclosures in the public interest, providing they follow the procedures set out in the Act. It therefore applies to all staff working in the NHS.

Although PIDA does not require organisations to set up whistleblowing policies and procedures, it does provide an impetus for doing so. Guidance issued in 2003 made clear that NHS organisations should put in place local policies and procedures that comply with the Act and set out minimum requirements for such policies.

The Department of Health also provides funding to the charity Public Concern at Work, which provides an independent source of advice for NHS workers seeking to raise concerns in the public interest.

In all cases, professionals must consider the wider implications of failing to report such concerns and the risks to patient safety, which is their primary responsibility. In March 2011, the GMC began a process of consultation on additional guidance to supplement Good Medical Practice, for doctors (as individuals or managers/employers) about raising concerns about patient safety. This additional guidance also includes information on how to make a concern public - i.e. how to whistleblow.

To help all employers (including doctors) to build a culture where staff feel able to raise concerns about poor practice or potential risks to patient safety Speak up for a healthy NHS was commissioned by the Social Partnership Forum. The guide, written by the independent whistleblowing charity Public Concern at Work, was launched at the NHS Confederation conference on 25 June 2010. It sets out simple steps to help employers ensure their whistleblowing arrangements work.

The reasons for suspension (exclusion) or dismissal of NHS staff are varied. The Department would therefore be interested in giving evidence to the Committee should they examine in more detail consequences that some individuals experience when they have raised concerns.

Recommendation Para 45

In contrast to the approach of the Nursing and Midwifery Council, the GMC has put its fitness to practise cases relating to Mid Staffordshire "on hold" until the inquiry has concluded. The Committee believes that this is neither fair to the public, or to the registrants under investigation. We urge the GMC to set out its rationale for this, publicly and clearly.

Response

The Department acknowledges the Committee's view. This is a matter for the GMC as the independent regulator for doctors.

Recommendation Para 49

We suggest that the GMC further considers risk-based approaches to proactive regulation and how these could be developed with its employer liaison services.

Response

The Department welcomes the Committee's suggestions in this regard.

Recommendation Para 53

The Committee appreciates the seriousness with which the GMC has treated the suggestion that doctors from black and minority ethnic backgrounds are overrepresented in fitness to practise cases. The finding that this relates to overseas trained doctors and not ethnicity per se does not alter the fact that a problem exists.

Response

The Department supports the Committee's comments on this, and welcomes the GMC's previous and ongoing work to understand whether and why black and minority ethnic doctors might be overrepresented in fitness to practise cases.

Recommendation Para 54

The GMC needs, as matter of urgency, to do more to understand the risks associated with overseas-qualified doctors. It should offer timely induction and needs to assure itself that those doctors in peripatetic locum positions are adequately supervised and supported. If a doctor is not safe to practise in the UK then the GMC must ensure that they do not do so.

Response

The GMC does not have the statutory ability to impose standards of supervision and support upon those engaging overseas doctors in peripatetic locum positions and it is the Department's belief that they should not. Similarly, matters relating to induction arrangements are the responsibility of employing and contracting organisations addressing the needs of the work the doctor will be doing within and for their organisation.

The GMC has a robust process for establishing the suitability for registration of migrants from third countries relying on third country qualifications. (EEA migrants have been covered above.)

Under the Health and Social Care Act 2008, providers of regulated activities (which would include NHS trusts and locum agencies that also provide regulated activities) must register with the Care Quality Commission (CQC) in England. As such, they must ensure that they meet the registration requirements set by the CQC, which include requirements around staffing skills, experience and fitness. The responsibility for ensuring that staff employed to carry out a regulated activity are fit to practise rests with the provider, and CQC can take enforcement action against the provider if it does not meet the requirements.

Voluntary Erasure

Recommendation Para 61, 62 and 64

Several cases have been brought to the attention of the Committee of doctors applying to remove themselves from the register during an ongoing investigation into their practice by the GMC (so called voluntary erasure). The Committee has no objection to the principle of voluntary erasure as it can be a useful tool to protect the public. However, in some cases, interested parties have been given little or no time to raise an objection to applications for voluntary erasure, and the GMC was not able to offer a clear explanation of this.

Applications for voluntary erasure must not be granted by the GMC unless interested parties have been given adequate notice of an application and have been offered an opportunity to voice an opinion on the matter.

The Committee fully supports the publication of the facts of any case of voluntary erasure where there is a fitness to practise allegation about the doctor concerned. The GMC needs to ensure that turning voluntary erasure into an admission of guilt does not have a perverse impact in reducing the numbers seeking it and therefore erode public protection.

Response

The purpose of fitness to practise action is to ensure that the public are appropriately protected from the activities of poorly performing professionals. Its purpose is not to provide a means of direct redress for the victim of the actions of a poorly performing professional. Whilst sanctions such as suspension, removal from the register or conditions on practice may have a punitive effect, that is not their primary purpose.

As the Committee has highlighted, voluntary erasure is a valuable tool for protecting the public. The GMC has a published a transparent process (underpinned by legislation) for the handling of voluntary erasure applications. Current GMC guidance on these matters makes it clear that decision makers on applications for voluntary erasure should balance the interests of complainants against the interests of doctors, before deciding whether voluntary erasure is appropriate in all the circumstances. This guidance also makes clear that there will be cases where the public interest dictates that it is appropriate to refuse such applications, and pursue fitness to practise action against the doctor concerned.

The guidance recognises the importance that, in the event of a voluntary erasure application being granted, details of the allegations admitted should be made available to relevant enquirers (including potential employers and overseas medical authorities). The guidance makes clear that allegations admitted would also be considered if the doctor subsequently applies for restoration to the register.


 
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Prepared 7 March 2012