2013 accountability hearing with the General Medical Council - Health Committee Contents


4  Fitness to practise

Professional Standards Authority assessment

45. The PSA's review of the GMC's overall regulatory performance endorsed the GMC's fitness to practise procedures. It said that:

    The GMC continues to meet the Standards of Good Regulation for fitness to practise. It has maintained an effective, transparent, proportionate and secure fitness to practise process and has achieved this against a backdrop of rising fitness to practise case volumes.[58]

46. The PSA provided an overview of their review of final fitness to practise decisions.They reported that they "did not appeal any GMC cases in 2009, 2010, 2011."[59] The status in 2012 and 2013 was:

Total cases reviewed Total GMC cases reviewed Total appeals GMC Appeals
2012 2559397 51
2013
(to 15 Nov)
2099219 72

    They added:

      We do not attempt to draw conclusions about the reasons behind the rise in the number of cases that meet the threshold for appeal. The numbers are too small to allow us to do this. However, we will continue to monitor the situation.[60]

    47. The Committee's report of the 2012 accountability hearing concluded that the GMC's 15 month target to conclude 90% of cases was "insufficiently challenging" and the GMC should report on the number of cases concluded within 12 months.[61] In their written evidence sent to the Committee in advance of the 2013 hearing, the GMC said they have reviewed their Key Performance Indicators and replaced the 15 month objective with a target of 12 months. They noted that they met this target in September and October 2013. In addition the GMC's evidence said:

      While we are closing 90% of all cases received within 12 months, complicated cases that require a hearing take longer. For example, where we are waiting for the outcome of criminal investigations and legal proceedings.

      We have an on-going programme of improvements to ensure our processes remain fit for purpose. Some of the improvements include:

      ·  the launch of a new online complaint form, which makes it easier for complainants to provide the right information at the right time.

      ·  improvements to the information we provide to complainants and referring organisations

      ·  improvements to the way we monitor and track individual cases

      ·  the development of a new process for handling complaints which would be more appropriately dealt with at a local level. [62]

    48. The GMC also said that deploying Employer Liaison Advisers and "pilots of meetings with doctors and complainants during an investigation, should result in an improved and in many cases quicker process"[63].

    AUDIT OF FITNESS TO PRACTISE CASES

    49. In December 2013 the PSA published the findings of an audit it had conducted of the GMC's initial stages fitness to practise process. The PSA audited 100 cases that were closed in their initial stages and assessed whether in closing the cases the GMC achieved the aim of protecting patients, service users and the public.[64]

    50. The PSA audit uncovered deficiencies in almost a quarter of the cases they reviewed, but in only 5 cases did they raise concerns about the final decision made in a fitness to practise case. The PSA's summary of their findings said:

      The 100 cases that we reviewed in our audit showed that the GMC has maintained its effective casework system. Our overall conclusion is that the GMC's initial stages fitness to practise process protects the public and maintains public confidence in regulation. We also identified a number of examples of good practice by the GMC in its handling of cases. However, we found weaknesses or areas for improvement in 22 of the cases that we audited, including five cases in which sufficient reasons for the GMC's decisions were not adequately communicated to third parties. We did not have any concerns about the GMC's actual decisions in the remaining 17 cases.[65]

    51. The PSA's examination highlighted the failure to provide complainants with clear or adequate reasons for closing investigations in a number of cases. The audit found:

      nine cases in which insufficiently detailed reasons for decisions were recorded, or inadequate reasons were communicated to relevant parties. In eight of the nine cases the GMC decision makers (both case examiners and other GMC staff) had not, in our view, provided adequate reasons for their decisions. While we do not consider that the decisions to close these cases failed to protect the public, we consider that the decisions would have been strengthened had clearer and more detailed reasons been documented.[66]

    In oral evidence, Niall Dickson explained that in cases where a doctor accepts the case against them the GMC "would make absolutely sure that it was known to the complainant. We would contact them and make sure they were informed of the action that had been taken."[67]

    52. In addition the PSA found flaws in the GMC's information-gathering processes. The audit "identified four cases [...] where we considered that the GMC's information-gathering could have been improved"[68]. The PSA cited the example of an investigation where:

      We were concerned that the new information might have demonstrated a pattern of behaviour by the doctor, and that the GMC had not taken the opportunity to investigate whether or not that was in fact the case.[69]

    Another case highlighted by the PSA focused on the decision by the GMC to progress an investigation under their stream 2 processes which "are for cases that do not appear to raise a question about a doctor's fitness to practise."[70] In this case, the PSA did not call in to question the GMC's eventual findings, but they expressed concern that in a case where a patient had died, because it was a stream 2 investigation, "neither the post mortem report nor the patient's medical records were obtained by the GMC"[71]. The PSA reported that the GMC had assured them that they have explored improved methods of triaging investigations and the PSA will examine this in their next audit.[72]

    53. The Committee is satisfied with the Professional Standards Authority's overall conclusion that the GMC's processes protect the public. The Committee believes that failures to provide complainants with clear or adequate reasons for closing investigations must be addressed as a priority if the GMC's fitness to practise processes are to be regarded as fair and transparent. It is essential that complainants are presented with a comprehensive justification for the decisions that are reached, especially in cases where investigations are closed without sanction. Failing to achieve this will undermine public confidence in the GMC.

    54. Clarifying the procedures for allocating investigations between stream 1 and stream 2 would also help to instil greater public confidence in the GMCs fitness to practise processes. The Committee expects the GMC to review its fitness to practise procedures as a result of the PSA's audit. The GMC should seek to ensure that in future audits no cases are called in to question because their triaging meant key information was not gathered.

    Sanctioning registrants without fitness to practise hearings

    55. In oral evidence in 2012 the GMC told the Committee that they were preparing to pilot a new scheme whereby doctors under investigation in a clear-cut case could agree a sanction without referral to the Medical Practitioner Tribunal Service (MPTS). The GMC said it was considering this on the basis that it "could speed up procedures and conserve resources."[73]

    56. The Committee's report of the 2012 accountability hearing noted that there:

      is a potential reputational risk to the GMC and the medical profession more widely if the perception is established that doctors are able to accept the facts of a charge and negotiate a sanction without any appearance before a panel or the presentation of any evidence in public.

      We note the proposal to pilot arrangements where a doctor may accept a sanction in a 'clear-cut' case without requiring a panel hearing. We recommend that the GMC evaluate such pilots carefully to ensure that there is no detriment to the public interest in not holding a hearing, and publish detailed and clear guidance on the circumstances in which such a procedure may be considered appropriate.[74]

    In their response to the Committee's 2012 report the GMC said that it is difficult to make the case to hold a hearing in relation to investigations where the doctor accepts both "that there is a problem with their practice and the proposed action needed to protect patients"[75].

    57. In written evidence submitted in advance of the 2013 accountability hearing, the PSA echoed this view and said that they shared the Committee's concerns. Their evidence said that applying sanctions to avoid holding fitness to practise hearings:

      can have some drawbacks in terms of transparency, which will only be magnified if decision makers do not provide clear evidence that they have given due account to all the relevant factors in reaching a decision that consensual disposal is the appropriate outcome.

      While the Authority supports in principle schemes that seek to conclude cases in an effective and proportionate manner, we agree with the Committee that procedural changes should be implemented with clear guidance and decision making protocols that demonstrate that they are being used appropriately.

      For example, the GMC can agree undertakings with a doctor without the need to go to a panel hearing. Some registrants may have an interest in accepting whatever the GMC propose by way of undertakings, in order to bring the matter to a close. Therefore it is not appropriate to assume that in accepting the offer of undertakings the doctor has demonstrated insight, and has an adequate understanding of what went wrong and what needs to change in the future. Doctors are required to cooperate with their regulator, so such cooperation in itself cannot be used to establish insight.

      We think it is essential that there are clear criteria embedded in these procedural changes that test for evidence of a doctor's insight, beyond the fact that they are willing to accept undertakings. We would expect the GMC is able to show it has gathered evidence that a doctor had demonstrated insight into the shortcomings of their practice.[76]

    58. In oral evidence the GMC said the main measure of success for this schemeis the registrant accepting the proposed sanction rather than forcing the investigation to conclude with a hearing. Niall Dickson told the Committee that "[a]s far as the meetings with doctors are concerned, the measure of success would be where doctors accepted our sanction."[77]Mr Dickson added that the GMC is:

      proposing that the Professional Standards Authority is able to audit all our decisions in this area so it is able to see and judge whether we are making the appropriate sanction based on the evidence. It is important that there is external scrutiny of that process.[78]

    59. Niall Dickson recognised, however, that the reaction of doctors to the opportunity to avoid fitness to practise hearings should only be one measure of success, he said:

      It is a combination of things. If doctors accept the sanctions, we are shortening the process and they are feeling better about the process as a result, and if witnesses are not put through the trauma of having to appear in front of a hearing and we are succeeding in protecting the public, those are certainly the aims we would hope for as a result of the pilot.

    Allied to this, Mr Dickson told the Committee that the GMC would meet with complainants at the beginning and end of investigations in order to find out their views regarding the process.[79] Niall Dickson also assured the Committee that once sanctions are placed on a doctor's practice the GMC has "a whole team of people who spend their whole time finding out and checking that the doctor is doing the things that [...] we have required of them."[80]

    60. Although the pilot programme had yet to be completed, the GMC said in oral evidence that they believed the "early results are positive".[81] They observed, however, that legislative change is required for penalties such as suspension or erasure to be levied without recourse to a fitness to practise hearing.[82]

    61. The Committee believes that scheme for imposing sanctions without full fitness to practise hearings can only be regarded as successful if the registrant can demonstrate that they have genuinely learnt from the experience and changed their practice as a result of the sanction. Although safeguards are in place to check that sanctions are being adhered to, we remain concerned that registrants may accept sanctions to avoid full fitness to practise hearings without demonstrating that they fully understand and accept their own failings. In their analysis of the pilot scheme, the GMC must examine whether those doctors subject to sanctions have demonstrated an understanding of their own failings and changed their professional practices as a consequence.

    62. To inspire public confidence, the scheme must not be regarded an easy mechanism for concluding cases quickly, or a process which allows registrants to escape the scrutiny of a fitness to practise hearing. The Committee accepts the GMC's argument that allowing tougher sanctions to be levied without recourse to a full hearing would strengthen the process and help to prevent it being seen as a soft option.

    Medical Practitioners Tribunal Service

    63. The Medical Practitioners Tribunal Service (MPTS) commenced in June 2012 as a service which is operationally independent of the GMC complaint handling, investigation and case presentation functions. This fulfilled an undertaking given by the GMC in 2011 that it would make a clear separation between its role of investigator and presenter of cases and the adjudicator on those cases.

    64. The GMC's written evidence stated that since June 2012 the MPTS has "made independent decisions in more than 3,000 Interim Order Panel hearings and more than 500 Fitness to Practise hearings."[83] They noted that the MPTS is recruiting new lay panellists and are focussing their search on people with legal qualifications and they said the aim is to "use more legally qualified chairs who will be able to take a more active [role] in case management, ensuring that time is not wasted by any of the parties involved."[84]

    65. In the report of the 2012 accountability hearing, the Committee welcomed the emphasis placed by His Honour David Pearl, Chair of the MPTS,on "consistency in decision making, the effective management of its cases and the dissemination of best practice."[85] The Committee also welcomed the Government's commitment that they would legislate to allow the GMC to appeal against decisions made by the MPTS.

    CONSISTENCY IN DECISION MAKING

    66. Examining the steps taken by the MPTS to improve consistency in decision making, HHJ Pearl outlined a number of initiatives. He told the Committee that:

      We have taken a number of measures. The first is that we have a quality assurance group, which I chair. That group looks at almost all the decisions taken by fitness to practise and interim order panels. We meet regularly every four weeks and look at all of those cases. If there are learning issues or concerns, I take it upon myself to write to all three members of the panel and the legal assessor about those issues to ask them to reflect, because it is part of the training.

      As to the second development, we have instituted a training programme for all of our panel members, both the long-standing ones and the new ones. [...] That is a very regular training programme [...] where we look at all of the trends in case law and the procedures to ensure we have consistency.

      The third very important introduction is a system of mentoring for newly appointed members and appraisal, especially for our chairs. I and some of my colleagues sit in on and observe many of the hearings, including the "in camera" discussions that take place, to ensure that there is consistency in the way in which the panels are discussing cases.[86]

    67. HHJ Pearl also made clear that the MPTS has examined how it communicates its findings and conclusions to the various parties involved in each case. He said:

      It is very important that when the panel reaches a decision it gives very clear reasons, obviously for the doctor but also for the profession at large, the complainant and indeed the GMC, because that is the body bringing the case. We publish those decisions. Everybody has a way of seeing exactly the way in which the panel has reached its decision.[87]

    Beyond communication with interested parties, HHJ Pearl also sought to emphasise the external assessment of MPTS decision making. He noted that in cases where the panels' decisions have been reviewed they have not been reversed:

      Measurement is always rather difficult in this particular area. No two cases are exactly alike, but it is at least reassuring to know that, when doctors have taken cases to the High Court on appeal under section 40 of the Medical Act, certainly in the last six months or so, the decisions of the panel on the findings of fact, impairment and any sanction they have imposed have by and large been upheld. The most recent cases have upheld the decisions of the panel, so there is an external review of what is going on.[88]

    THE GMC'S RIGHT OF APPEAL

    68. In their response to the Committee's report of the 2012 accountability hearing the Government said that they were exploring the proposal to allow the GMC to appeal MPTS decisions. The response noted that the GMC believed that such a reform would "enhance its independence from the decisions of the MPTS and allow them to challenge panel decisions that they believe are too lenient"[89], but understood that the PSA had expressed concerns about how the system would operate in practice. In their original response to the Committee's 2012 report, the GMC said they hoped the legislation "might be introduced by the middle of 2014"[90].

    69. In oral evidence, however, the GMC revealed that the Government would not legislate in 2014 to give the GMC the right to appeal MPTS decisions. Professor Sir Peter Rubin told the Committee that:

      As we were leaving the office today, I received a letter from the Parliamentary Under-Secretary of State for Health indicating that the section 60 order[...] will not progress in 2014 but will be incorporated within the Bill as a result of the Law Commission inquiry.[91]

    In his letter to Sir Peter, Dr Daniel Poulter MP, Parliamentary Under-Secretary of State for Health, explained that the timetable for implementation of the proposed section 60 order would overlap with the proposed Law Commission Bill implementing reforms of professional health and care regulators. The Law Commission said in 2012 that a draft of a Bill to implement the recommendations it made in its final report would be published alongside the report in 2014.[92] The Government in turn said reforms to give the GMC the right to appeal against MPTS orders would be introduced as part of the Law Commission Bill in the 2014-15 parliamentary session.[93]In his letter to the GMC, the Minister said that should the Law Commission Bill not receive Royal Assent by April 2015 then the Government would revert to a section 60 order.[94]

    70. It is disappointing that the proposal to implement regulatory reforms which would allow the GMC to appeal Medical Practitioner Tribunal Service (MPTS) decisions are not be introduced by section 60 order in 2014. Given the number of cases adjudicated each year, the Committee believes that the Government should have prioritised the introduction of the section 60 order in 2014 in order to implement the provisions at the earliest opportunity.

    71. With the expectation that the next parliamentary session will see pre-legislative scrutiny of the draft Law Commission Bill, rather than the passage of a Bill through Parliament, the Government's legislative timetable appears to be exceedingly optimistic. The Committee is concerned that incorporating the right to appeal in a draft Law Commission Bill will only further delay implementation, as there is little likelihood of Royal Assent before the end of the Parliament. Therefore, the Committee urges Ministers to use a section 60 order to implement the GMC's right to appeal MPTS decisions as soon as is reasonably practicable.

    Registrants with criminal convictions

    72. In November 2013 it was reported that hundreds of doctors with criminal convictions were still practising in the UK. The Daily Telegraph reported that:

      The General Medical Council (GMC) released the number of criminal records held by practising doctors in response to a Freedom of Information request. It showed 761 doctors were practising in October this year, despite accumulating 856 convictions between them.

      They included one doctor who took indecent photographs of a child, two with convictions for possessing child pornography, two for trafficking drugs and three for grievous bodily harm. There were 31 offences of assault, three of possessing dangerous weapons, seven for soliciting prostitutes, a dozen for domestic violence, and two of child cruelty or neglect.[95]

    The GMC's written evidence confirmed these figures. The GMC noted that of the 761 doctors licensed to practise who have a criminal conviction, 590 convictions related to driving offences.[96]

    73. In their written evidence the GMC said that:

      Any doctor who receives a custodial sentence is automatically referred to the Medical Practitioner Tribunal Service (MPTS), which now hears all cases pursued by the GMC. [...]

      Most doctors with serious criminal convictions are removed from the medical register or suspended for a time and most can only return to work under strict conditions.[97]

      Other than in the most extraordinary circumstances, the GMC will always call for the doctor to be removed from the register in cases where there is a serious conviction such as sexual misconduct and serious dishonesty[98].

    They added that there are "14 licensed doctors on our register who we called for to be erased since 2008; 11 of these were suspended, 1 received undertakings and 2 received a warning."[99]

    74. The GMC's written evidence emphasised the importance of the right to appeal decisions taken by the Medical Practitioner Tribunal Service (MPTS). In addition the GMC is seeking the:

      powers to remove doctors from the register without the need for a hearing if they have committed very serious offences which are incompatible with practising as a doctor. Under our rules and legislation only a fitness to practise panel can remove a doctor from the register. In order to be compliant with human rights legislation a doctor would have a right to make representations which we would consider prior to removing their name from the register but a hearing would not be necessary. We have consulted on this and now just need the legislation to do it.[100]

    75. In oral evidence the GMC told the Committee that those doctors who remain on the register having been convicted of very serious offences (including sexual offences) do so because the cases were adjudicated in 2004 and 2006 and current practice would be different.[101] Niall Dickson told the Committee that the GMC would always call for erasure in very serious cases such as the possession indecent images of children. HHJ Pearl said that he would be "most concerned" if a doctor with a conviction in such a case was allowed to continue to practise as a doctor.[102] Mr Dickson added:

      To be absolutely clear, the leadership of the General Medical Council and all its bits would absolutely, every time, in the instances you are referring to, want to see the doctor erased. If you give us the right of appeal and the panel does not, we will do it. This is not a debatable issue.[103]

    76. The Committee believes that carrying a conviction for a serious violent or sexual offence is incompatible with being a doctor. We welcome the GMC's commitment to pursue the most severe sanctions against registrants convicted of such offences. This issue illustrates the importance of legislation being implemented to allow the GMC to appeal Medical Practitioner Tribunal Service decisions. Whilst His Honour Judge Pearl's comments were reassuring, it is vital that the GMC is able to challenge panel judgements which may be too lenient or incompatible with professional practice. Similarly, implementing the legislative reform to allow the GMC to remove doctors from the register without recourse to a full fitness to practise hearing will enable the GMC to act in the interests of the public and the profession without undue delay.

    Language competence of licensed doctors

    77. In its report of the 2012 accountability hearing the Committee welcomed the proposal that would allow the GMC to test language competence in cases where specific concerns regarding doctors' language skills had been identified.[104] In their written evidence, the GMC described how policy related to language testing had developed since the 2012 accountability hearing. Their submission said:

      The Department of Health has agreed to put proposals to parliament to amend the Medical Act next year which will allow us to check the language skills of doctors from the European Economic Area after the point of registration but before granting a licence to practise. The Department of Health and the GMC are currently consulting on these proposals which would allow us to do so in cases where we have concerns about a doctor's knowledge of English.

      We are pleased that following engagement from the GMC and other regulators in Europe the new directive will now contain significant improvements which will enhance patient safety. In particular the revised text of the Recognition of Professional Qualifications Directive now states that competent authorities - such as the GMC - should have explicit powers to assess the language competency of all health professionals after their qualifications have been recognised but before they are allowed to practise. The new Directive will need to be transposed into UK law by the end of 2015. At this point the GMC should be able to introduce a more comprehensive scheme for language controls before doctors are given a licence to practise in the UK.

    78. The Government confirmed on the 9 September 2013 that it had launched a consultation on amending the Medical Act 1983 in order to implement language controls for doctors. The consultation highlighted the extent of the problem.

      The GMC has provided the Department with figures which show that in 2012 there were ten fitness to practise cases concluded by the GMC, which involved concerns about the language skills of doctors from within the European Economic Area (EEA). In addition, a survey of Responsible Officers by the England Revalidation Support Team (RST) in 2011, which covered just over half of all doctors, indicated that there were 66 cases where Responsible Officers have dealt with linguistic concerns about a doctor.[105]

    79. The proposed controls would strengthen the ability of the GMC to launch fitness to practise proceedings by classifying a lack of knowledge of English as an impairment. The regulations would also allow for language testing as part of a fitness to practise investigation in order to gather evidence. In addition the proposals would allow:

      the GMC to refuse a licence to practise to a doctor who was unable to demonstrate the necessary knowledge of English. This would apply on an application for first registration with the GMC or a subsequent application for a licence to practise if the doctor had not previously held a licence.[106]

    The consultation also included a proposal that the regulations include an"explicit duty, in legislation, on Responsible Officers to ensure English language competence as part of the recruitment process."[107]

    80. In oral evidence Sir Peter told us that he had received assurance from the Department of Health that the amendment to permit language testing "will progress in April 2014"[108]. Additional written evidence submitted by the GMC said that in 2013 the GMC "made decisions on 13 fitness to practise cases where a doctor's knowledge of English formed a significant element of the concerns raised with us."[109] This represents a slight increase on 2012.

    81. The Committee welcomes the fact that the Government is legislating to allow the language testing of registrants from the European Economic Area in cases where a doctor's communications skills are of concern. This represents an important development in improving public protection as both Government and GMC data shows that language concerns have been prevalent in fitness to practise cases. The Committee notes that responsible officers will be tasked with identifying concerns and undertaking testing. In their assessment of the performance of responsible officers the GMC should evaluate whether they are sufficiently close to their registered doctors to make informed decisions concerning their ability to communicate with their patients.


    58   PSA, Performance Review, para 12.26 Back

    59   PSA (GMC 03) para 4.1 Back

    60   Ibid para 4.1 - 4.3 Back

    61   HC 566, para 90 Back

    62   GMC (GMC 02) para 31 Back

    63   GMC (GMC 02) para 32 Back

    64   PSA (GMC 03) para 3.1 Back

    65   Professional Standards Authority, Audit of the General Medical Council's initial stages fitness to practise process, December 2013, para 1.8 Back

    66   Ibid, para 2.14 Back

    67   Q58 Back

    68   PSA, GMC Audit, para 2.10 Back

    69   PSA, GMC Audit, para 2.11 Back

    70   Ibid, para 1.17 Back

    71   Ibid, para 2.12 Back

    72   Ibid Back

    73   HC 566, para 87 Back

    74   Ibid, para 87-88 Back

    75   HC 1110, p 11 Back

    76   PSA (GMC 03) p2 Back

    77   Q54 Back

    78   Q54 Back

    79   Q55 Back

    80   Q57 Back

    81   Q53 Back

    82   Q53 Back

    83   GMC (GMC 02) para 33 Back

    84   Ibid, para 34 Back

    85   HC 566, para 95 Back

    86   Q70 Back

    87   Q70 Back

    88   Q70 Back

    89   Department for Health, Government Response to the House of Commons Health Committee Report of Session 2012-13: 2012 accountability hearing with the General Medical Council, February 2013, p 5 Back

    90   HC 1110, p 12 Back

    91   Q71 Back

    92   Law Commission, Regulation Of Health Care Professionals, March 2012, para 1.35 Back

    93   Department of Health, Letter from Dr Daniel Poulter MP,Parliamentary Under-Secretary of State for Health, December 2013 Back

    94   Letter from Daniel Poulter MP, December 2013 Back

    95   "Hundreds of convicted doctors still practising", The Daily Telegraph, 24 November 2013 Back

    96   GMC (GMC 026) p1  Back

    97   Ibid Back

    98   Ibid  Back

    99   Ibid Back

    100   Ibid Back

    101   Q68 Back

    102   Q68 Back

    103   Q68 Back

    104   HC 566, para 56 Back

    105   Department of Health, Language Controls for Doctors - Proposed Changes to the Medical Act 1983, A paper for consultation, 7 September 2013, p 8 Back

    106   Ibid, p 12 Back

    107   Ibid, p 6 Back

    108   Q71 Back

    109   GMC (GMC 027) p 3-4 Back


     
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