Reform of the fitness to practise procedures at the GMC - changes to the way we deal with cases at the end of an investigation

COMMENTS ON GENERAL MEDICAL COUNCIL
REFORM OF THE FITNESS TO PRACTISE PROCEDURES AT THE GMC - CHANGES TO THE WAY WE DEAL WITH CASES AT THE END OF AN INVESTIGATION

The College is pleased to respond to this consultation and understands that, since the publication of this consultation, the UK government has signalled the abolition of the Office of the Health Professions Adjudicator (OHPA).

The College has consulted with Fellows with experience of fitness to practice panels and the College Lay Advisory Committee, and has comments on the following points:

• a need for full transparency at the investigation stage
• a need to avoid any perception of negotiation in arriving at sanctions
• concerns about sharing information on a “without prejudice” basis
• a need for exemplary investigation and reporting procedures
• the importance of public reporting for public confidence
• concerns about a specific list of automatic sanctions

Answers to the specific consultation questions follow:

Q1.  Do you agree where there is no significant dispute about the facts, we should explore alternative means to deliver patient protection other than sending cases to a public hearing. If you disagree, please give reasons for your answer.

The College understands that the purpose of a public hearing is to determine the facts and that the GMC has a primary responsibility to protect the safety of the public rather than to punish doctors. This being so, there is much merit is reducing the time and expense of conducting public hearings. However the College is fully aware that, as the regulator, the GMC also has a responsibility for public confidence in the medical profession, and therefore transparency in procedures and outcomes from any new system is essential along with lay input into the determination of sanction.

It is hoped that the new system of GMC Employer Liaison Advisers will go some way to ensuring issues are handled locally, reducing the number of referrals to the GMC, and which are so damaging to doctors, witnesses and complainants

Q2.    Do you agree that it would be appropriate for the GMC to have discussions with doctors in order to foster cooperation? If you disagree, please give reasons for your answer.

Discussion with doctors is essential to ensure that doctors understand the options open to them.  However, the question is unfortunately worded as it implies some sense of negotiation between the GMC and doctor when it is acceptance of the GMC decision that is on offer, following confirmation of the facts. 

Q3.    Do you think doctors should be able to share information on a “without prejudice” basis?

Whilst intuitively attractive to encourage full reporting and facilitate investigation, it is difficult to see how a subsequent public hearing in the event of failure to accept sanctions could ignore information given previously to investigating officers. This would require the GMC only to use this information to trigger separate investigations to verify facts given earlier and rescinded and could damage confidence in the process.  It is also unclear how this would sit alongside a doctor’s professional responsibility for probity.

Q4.    Do you agree that we should consider ways to access practical facilitation skills to support constructive discussions with doctors?

The calibre of investigating officers will be critical to the success of achieving acceptance of investigation and sanction.  Well-developed facilitation abilities will be among the key skills required of these officers, but they will also require an understanding of the work environment of doctors and the standards required of doctors.  The GMC will need to recruit and train a team of investigation officers who are independent of the sanction setting process; contracting in facilitation experts will only be of partial benefit.  The abolition of the Office of the Health Professions Adjudicator makes the independence of investigation from sanction setting all the more important. However, the use of well-developed facilitation skills at local level to avoid referral to the GMC would bring major benefits.

Q5.    Do you agree with the approach outlined for communicating with complainants about our discussions with doctors?

The investigatory stage should be a standard part of each case, the outcome of which could be exoneration, accepted sanction or public hearing.  Clearly, all complainants should be advised of the GMC procedures, particularly the objective of public protection without being punitive.  Complainants should also be advised of the outcome of the investigatory stage and the justification for the GMC choice of sanction should be made clear.  Indeed, for public confidence it may be necessary to put all of this information (excepting health and third part details) into the public domain.

Q6.  Do you think the term” by mutual agreement” correctly reflects the outcomes of discussions with doctors?

The College would prefer the term to reflect the acceptance of a GMC determined sanction as “by mutual agreement” implies negotiation.  Adopting the style “accepted or uncontested sanction” would be preferable.

Q7.    Do you think that publication of the sanction accepted by the doctor will maintain public confidence?

Transparency offered by full publication of the complaint and investigation findings (excepting health related and third party details) will allow public scrutiny of the appropriateness and consistency of sanctions accepted by doctors subject to complaints. However, this alone cannot guarantee public or professional confidence.

Q8.    Do you believe we should publish a description of the issues put to the doctor? What other information (mitigation etc) should we publish?

See above.

Q9.    Do you think our proposals are a reasonable way to deal with any risk of deterioration of evidence?

The College understands that the proposals require the doctor to accept two related but different things: the facts as laid out by the investigation and the sanction determined by the GMC.  Both are essential lest a doctor accepts a sanction to avoid the publicity and stress of a public hearing but does not accept the substance of the complaint.  Requiring a signed acceptance of the statement of facts will reduce the risk of evidence loss should a doctor attempt to amend the facts on applying for restoration.

Q10.  How do you think that we might ensure that unrepresented doctors fully understand the implications of signing a statement of facts?

It seems unlikely that, given the importance of the accepted facts, many doctors will be prepared to sign the statement of facts without first seeking legal advice and most will be members of a defence union.  This will negate much of the financial saving expected from this amended procedure, as investigation reports will need to be carefully worded and evidenced.  Indeed, those sitting on GMC panels advise that unrepresented doctors are treated very carefully by panels and GMC counsels, recognising the vulnerability of such doctors.  The formality of a hearing is one benefit that may be lost if doctors are encouraged to accept the facts and the GMC determination.

Q11.  Are there any cases which should be referred to a public hearing even where the doctor is willing to agree the sanction imposed?

The GMC has public protection as a primary objective and, if facts and sanctions are accepted and the sanction is erasure, there should be no need to refer to a public hearing. However, there will be cases where a statement of facts is contested and/or where the sanction is less than erasure, and there may be judgement difficulties in terms of the level of sanction recommended – in such cases the GMC or the doctor may wish the additional scrutiny and protection of a public hearing.  The College does not believe that individual complainants should have the right to demand a public hearing.

Q12. Do you agree that there are some convictions that are so serious that behaviour is incompatible with continued registration as a doctor and that there should be a presumption that the doctor be erased?

The question for the GMC is whether any further investigation is required in cases when the facts have been tested under criminal law, which has a higher burden of proof (beyond reasonable doubt) than the civil proof (on the balance of probabilities) now required by the GMC.  Custodial sentences will evidence the facts but, unless the GMC is intent on erasing every doctor with a custodial sentence, it should take due account of context and mitigation before arriving at their own sanction.  Doctors should still have the option to accept erasure or to opt for a public hearing to challenge it.

Q13. Do you agree that the convictions we have identified are convictions which fall into this category

The College believes it is extremely difficult to create a list of crimes that result in automatic erasure, not because those already listed are not serious but rather that the list may be incomplete.  It may be safer not to specify and treat each case individually.

Q14. Are there any other convictions you think fall into this category?

See above.

Q15. Do you agree that doctors within our fitness to practice procedures who refuse to engage with our investigation, where we have made every attempt to seek their engagement should be automatically suspended from the register?

The College believes that failure to engage with the regulator brings the profession into disrepute and should be taken seriously.  Suspension, after preliminary investigation, and pending a full investigation and/or public hearing is an appropriate action for public protection.  This will also serve to encourage engagement, but the GMC has a duty to complete investigations quickly to avoid unnecessary stress and adverse publicity for doctors.

Q16.  Do you think these proposals will benefit or disadvantage any groups of people who are involved in our fitness to practice procedures?

The proposals have the potential to speed up procedures, thereby avoiding unnecessary stress on doctors, witnesses and complainants.

Q17. Do you think these proposals will impact on the confidence in our procedures of any particular groups of people?

The proposals may not appeal to those seeking public retribution and may leave complainants and bereaved families and friends feeling that doctors have escaped justice.  The GMC must put additional effort into communicating the public protection role of the regulator and the need to move away from a punitive approach.  Similarly, the GMC must develop transparent quality assurance of all investigatory processes and accepted sanctions to reassure doctors and the public of the fairness and consistency of the processes.  Publication of the outcome of investigations where there are “accepted sanctions” will support confidence in those cases avoiding a public hearing.