4 Professional regulators and complaints
92. The GMC and the NMC both gave evidence on their
handling of complaints made against their registrants. This builds
on work we have previously undertaken in accountability hearings.
93. Both have undertaken to give greater assistance
to the public in supporting complaints made against medical professionals,
for instance in support to witnesses appearing in disciplinary
cases. Niall Dickson, Chief Executive of the GMC told us:
…one of the key areas that we highlighted
in the pledge to the Clwyd/Hart review was about how we support
complainants through our process. Traditionally, it has to be
said that the GMC…historically have dealt with complainants
by writing them letters, often fairly legalistic letters, which
are sometimes difficult for complainants to understand, and then
the only time that they would see the complainant would be when
they turned up for a hearing, if there was a hearing in that particular
case. So we have started a process…whereby we actually meet
complainants…at the start of the process…
This gives us an opportunity first of all to
set expectations, because sometimes complainants have unrealistic
expectations of what our processes can do, but also to listen
to them, what is really concerning them and what they wish addressed.
There is that initial meeting and then there is somebody there
to whom they can go during the process. We are also meeting them
at the end of the process, when the process is concluded, to explain
what has happened during the process and why the decisions, whatever
the decisions are, have been made in that. That process of face
to face meetings is, as I say, obviously at a very early stage…but
the early signs are that patients and relatives really welcome
this. Inevitably, you will get more positive at the beginning
than at the end because, in our business, inevitably, some people
are disappointed at the end of the process, whether they are the
doctor or indeed the patient who is complaining.[54]
94. For the NMC, Sarah Page, Director of Fitness
to Practise, told us that
…during last year we spoke to a number of
witnesses who had been involved in our hearings and asked them
about their experience, from making the referral or the complaint
to us in the first place through the process up to the point of
attending one of our hearing centres. Using that information,
we identified some of the things that we needed to improve. One
of them was around having, for example, a single point of contact
for a witness through the proceedings. Another was about just
making sure we kept people informed at the various stages as things
progressed. Witnesses also told us that the actual environment
where they had to attend to give evidence was very important to
them, and we have made a number of improvements based on that—to
make the hearing centre a place that is more comfortable to wait
in so that witnesses feel more relaxed when they are called upon
to give evidence and various other changes of that type, including
providing better training to our staff and our panel members so
that they are all aware of how difficult it is to carry through
a complaint to the end. What we are intending to do later on this
year is to go back and do the evaluation of that by asking another
group of witnesses whether or not the changes we have made have
brought about improvements.
…One of the things that is important for
us to address right at the beginning is managing the expectation
of the person who is complaining to us in terms of what we can
do—what changes we can effect…we are a regulator that
regulates individuals. We can take action to protect the public.
We can't necessarily resolve all the issues that the witness may
have brought to the table, so part of what we do at the beginning
is making sure that the witness understands the part they are
playing in the process and what the possible outcomes may be.
Also, in terms of demystifying the process, we offer an opportunity
to witnesses to come and have a look at a hearing centre, sit
in the place where they are going to give evidence and also understand
some of the jargon and some of the questions they may be asked,
to try and help people through that process.[55]
95. The GMC also made clear that its purpose is to
hold to account the practice of its registrants only: it does
not seek to involve itself in examining the clinical governance
arrangements in Trusts. Niall Dickson told us:
Our focus is on individuals, not on the hospitals
themselves. That does not mean, of course, that we are not concerned
with or do not seek to influence the culture within organisations,
nor does it mean we do not have to rely on—which we do—the
recommendations, for example, for revalidation, which are based
on clinical governance arrangements within these institutions.
But we have neither the statutory powers, nor the resources, frankly,
to start second guessing and inspecting the clinical governance
arrangements, including the culture of safety…[56]
96. The GMC has a helpline for staff to raise concerns
about medical practice, including about the practice of its own
registrants. The GMC told us in August 2014 that since its establishment
in December 2012 the helpline had received over 1200 calls: these
had covered a wide range of issues, and were not always about
the fitness to practice of a doctor. 191 of the calls received
had been about matters specific to the fitness to practise of
one or more doctors, and 81 investigations had been opened as
a consequence. 87 of these 191 calls had been made by people who
wished to remain anonymous. The GMC told us that "we believe
that the helpline will continue to be a useful tool in helping
doctors to navigate their way through the complaints/raising concerns
system. We also believe it gives doctors the confidence to act
when they have concerns. We will continue to support this helpline
and to increase awareness of its operation among doctors and professional
bodies."
97. Of the 191 people who have contacted the GMC's
confidential helpline to raise concerns about the fitness to practise
of a GMC registrant between its inception in December 2012 and
August 2014, just under half have not been prepared to identify
themselves. This appears odd, given the confidential nature of
the helpline: it may reflect an initial lack of confidence in
any protocols surrounding the helpline's operation in its early
days.
98. While we agree with the GMC that people wishing
to give information about poor practice should be able to do so
anonymously, we consider that medical professionals raising concerns
about poor practice via a confidential helpline are under a professional
duty to provide as much information as possible to enable the
matter to be investigated and to put patients first.
99. We raised with the GMC witnesses the handling
by the GMC of fitness to practise cases against registrants which
had been initiated by other registrants, sometimes as counter-complaints,
and by Trusts. There could often be strong conflicting claims
of malpractice which were difficult to resolve, including instances
where registrants were reported to the GMC for not themselves
having reported instances of poor practice to the GMC earlier.
Niall Dickson set out the GMC's general approach to dealing with
such contested cases:
[T]he basic principle is—and I do not think
we should depart from this—that we should treat everybody
the same in the sense of looking at the circumstances of their
case, taking into account the context within which they have been
working and then assessing the evidence to the best of our ability.
The fact that somebody has complained about somebody else and
then gets referred themselves—either way round—means
we need to look at the circumstances of each case and examine
its strengths and merits.[57]
100. Mr Dickson freely acknowledged that there were
instances where a Trust could seek to use a referral as retaliation
against a registrant raising legitimate concerns about practices
in the Trust, and told us that "there is history around this
of individuals who are classic whistleblowers".[58]
In such cases, he observed that trying to differentiate instances
where a registrant was raising genuine concerns from instances
where a registrant's practice was giving genuine cause for concern
and investigation was difficult. In such cases the GMC's approach
had to be evidence-led:
[…] trying to sort this out, as it were,
is part of what our investigations have to do. We have to try
and establish where the truth lies. We should not automatically
accept, because it is a trust's management, as you put it, putting
in the complaint, that they are right and that the individual
is wrong. You have to take it on the basis of the evidence that
we are presented with.[59]
101. Niall Dickson was clear in evidence that the
GMC wanted to support a more open culture in response to complaints,
but that the way to achieve this was not to be heavy-handed in
disciplinary matters:
The idea that people will become more transparent
and open because there is more threat on them I don't think works.
I think we have to use another set of levers, more difficult and
more complicated levers.[60]
He said that his concern was "the responsible
officer level, the medical directors, who are, I think, beginning
to take on the role of revalidation. We will absolutely hold them
to account for what they do, but we also absolutely want to support
them in doing what I think is a really difficult job".[61]
102. In response to concerns raised by the Committee
about past disciplinary treatment of medical professionals who
have raised concerns, the GMC has established a review chaired
by Sir Anthony Hooper to examine how it deals with doctors who
raise concerns in the public interest. Niall Dickson told that
"One of the things we are prepared to do is to review how
we handle the whistleblowing area and how we manage to deal with
people who are saying they are whistleblowers. We want to get
this right."[62]
103. The GMC acknowledges the complexity of many
the cases it has to deal with, particularly where registrants
and Trusts are involved in referrals and counter-referrals, and
where there are strong conflicting claims of malpractice. The
GMC has to take such cases on a case by case basis, and has defended
to us its approach, which is to examine the evidence on all sides
and see where it leads. It is inevitable that in such cases fine
judgments will have to be made between competing claims in the
GMC's adversarial and evidence-based processes which determine
fitness to practise. The GMC has committed itself to a review
of its practices, which we discuss further below. We welcome
the willingness of the GMC to review its practices and investigations
to ensure that they adequately support registrants who genuinely
raise patient safety concerns in the public interest, and protect
them from retaliatory action. Such a review must have as its primary
purpose the establishment of an open reporting culture.
104. The Committee welcomes the GMC initiative
in establishing the Hooper Review to examine how it deals with
doctors who raise concerns, and looks forward to examining its
conclusions.
105. Professional regulation is not formally part
of the complaints system, but holding clinical professionals to
account for failings which may have had significant effects on
patients is an important part of protecting patients. Both the
GMC and NMC are grappling with the issue of how to support those
who raise concerns about clinical staff and advise them on what
is and is not likely to be the outcome. Given the seriousness
of the sanctions that can be applied by the professional regulators,
the processes are necessarily very formal and, as with other issues
we discuss in this report, change is an incremental process. Linking
together professional regulation, system regulation and the complaints
system is essential. Progress towards this goal is another issue
that our successor Committee will need to monitor in the next
Parliament.
54 QQ 340-41 Back
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