4 Fitness to practise |
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.
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."
The status in 2012 and 2013 was:
|Total cases reviewed
||Total GMC cases reviewed
(to 15 Nov)
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.
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. 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. 
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".
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.
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
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.
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
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."
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".
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.
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
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".
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.
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.
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
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.
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".
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.
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."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.
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
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
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. 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."
60. Although the pilot programme had
yet to be completed, the GMC said in oral evidence that they believed
the "early results are positive".
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.
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.
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
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."
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."
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."
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.
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.
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.
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",
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".
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.
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.
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.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.
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.
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.
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.
73. In their written evidence the GMC
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.
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.
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
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
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
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.
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.
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.
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
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.
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.
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.
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."
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".
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."
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
PSA (GMC 03) para 4.1 Back
Ibid para 4.1 - 4.3 Back
HC 566, para 90 Back
GMC (GMC 02) para 31 Back
GMC (GMC 02) para 32 Back
PSA (GMC 03) para 3.1 Back
Professional Standards Authority, Audit of the General Medical
Council's initial stages fitness to practise process, December
2013, para 1.8 Back
Ibid, para 2.14 Back
PSA, GMC Audit, para 2.10 Back
PSA, GMC Audit, para 2.11 Back
Ibid, para 1.17 Back
Ibid, para 2.12 Back
HC 566, para 87 Back
Ibid, para 87-88 Back
HC 1110, p 11 Back
PSA (GMC 03) p2 Back
GMC (GMC 02) para 33 Back
Ibid, para 34 Back
HC 566, para 95 Back
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
HC 1110, p 12 Back
Law Commission, Regulation Of Health Care Professionals, March
2012, para 1.35 Back
Department of Health, Letter from Dr Daniel Poulter MP,Parliamentary
Under-Secretary of State for Health, December 2013 Back
Letter from Daniel Poulter MP, December 2013 Back
"Hundreds of convicted doctors still practising", The
Daily Telegraph, 24 November 2013 Back
GMC (GMC 026) p1 Back
HC 566, para 56 Back
Department of Health, Language Controls for Doctors - Proposed
Changes to the Medical Act 1983, A paper for consultation, 7 September
2013, p 8 Back
Ibid, p 12 Back
Ibid, p 6 Back
GMC (GMC 027) p 3-4 Back