Council
20-21 May 2003
9c
To Consider
Review of Fitness to Practise
Issue
1.
Policy and planning issues concerning the review of Fitness to Practise.
Recommendations
2.
a.
To agree that the draft procedures rules should specify that, in health
cases, the GMC should be under a duty to disclose information to an
employer where a doctor is invited to accept voluntary undertakings
(paragraphs 8-11).
b.
To agree that we should not seek a power to review cases closed with
a warning issued by the Investigation Committee but that the power of review
should apply to other cases, including those closed with a letter of advice
(paragraphs 12-14).
c.
To agree that if, exceptionally, a senior legal chairman is appointed to
chair a conduct case a legal assessor should nevertheless also sit with the
panel (paragraphs 15-18).
d.
To note progress on implementing the outcomes of the review
(paragraphs 19-31).
Further information
3.
Paul Philip 020 7915 7421
Paul Buckley 020 7915 3654
Una Lane
020 7915 3609
[email protected]
[email protected]
[email protected]
Background
4.
The outline of the new framework for fitness to practise has already been
agreed by Council and is reflected in provisions contained in the Medical Act
(Amendment) Order 2002. In November 2002, Council invited FPPC to undertake
further work on some aspects of the policy design, and this paper reports FPPC’s
conclusions.
5.
A second area of activity is concerned with planning the implementation of the
new procedures. Among other things, this has involved testing key aspects of the
policy design, particularly at the investigation stage. This paper also reports on the
outcome of that work
6.
We are also drafting new procedural rules and guidance, based on policy
instructions agreed by FPPC. Those instructions – which run to some 40 pages – are
available on the website. This paper reports progress on the drafting of the rules and
guidance and on the scope and timetable of the external consultation exercise and
other communications issues.
Discussion
Further policy work
7.
FPPC was asked to look further at the following issues:
a.
Disclosure to employers in health cases.
b.
The re-opening of closed cases.
c.
Whether a legal assessor should sit with a Fitness to Practise panel if –
exceptionally – a conduct case had a senior legal chairman.
Disclosure to employers in health cases
8.
Section 35B of the Medical Act 1983 specifies a stage in each fitness to
practise procedure at which the GMC must inform the Department of Health and the
doctor’s employer that a fitness to practise investigation is taking place. As a result of
an amendment contained in the recent Section 60 Order, the points at which
disclosure is made under the new fitness to practise arrangements will be specified
in rules, rather than in primary legislation as at present.
9.
In November 2002, Council decided that the trigger points for disclosure
should be when:
a.
A case is referred to a Fitness to Practise panel or Interim Orders
panel.
b.
The Investigation Committee issues a warning.
c.
A doctor is asked to undergo a performance assessment.
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10.
FPPC had recommended to Council that, in cases raising health issues,
disclosure should be made at the same point as now, that is, when a doctor is invited
to undergo a health examination. Some members, including both health screeners,
were concerned that disclosure was being made prematurely and that the options for
disclosure at a later point should be explored.
11.
FPPC is persuaded, following further consideration, that there are strong
arguments for putting back the point at which disclosure is made in health cases.
What distinguishes health cases from other types of case is that it is only after a
doctor has been medically examined, and not through information which can be
provided with a referral, that it is possible to determine whether the GMC needs to be
involved. In future, therefore, the duty to disclose should be triggered only when a
medical examination revealed impairment of fitness to practise to a degree justifying
action by the GMC and the doctor is invited to accept voluntary undertakings (or is
referred to a Fitness to Practise panel).
Recommendation: To agree that the draft procedures rules should provide
that in health cases, the GMC should be under a duty to disclose information
to an employer where a doctor is invited to accept voluntary undertakings.
Re-opening of closed cases
12.
In November 2002, Council decided that it should be possible to re-open a
closed case where one or more of the following applied:
a.
New evidence cast an entirely different light on the matter.
b.
A subsequent complaint was received which, when taken together with
the closed case, suggested that action by the GMC might be justified.
c.
It came to light that the GMC had failed to follow rules or procedures
and a case had been closed where that clearly should not have happened.
13.
We have since received clear advice from Leading Counsel that there is no
legal objection to the GMC having a power to re-open a closed investigation cases in
any of the above circumstances.
14.
The power to re-open will apply to cases closed at the investigation stage
with no action or with a letter of advice. But FPPC does not consider that it would be
desirable (even if lawful) for the power of review to apply to cases closed with a
warning. Such cases will have been through a rigorous process to arrive at the
conclusion that a warning was appropriate. Further, if there were no benefit to a
doctor in accepting a warning (because of a risk that at a later date that the matter
might be re-opened and referred to a Fitness to Practise panel), it is inevitable that
the vast proportion of warnings would be contested at oral hearings. This would
make the arrangements for warnings unworkable. However, while a warning will not
be capable of being reviewed, it could be taken into account as an aggravating factor
in the event of a subsequent complaint.
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Recommendation: To agree that we should not seek a power to review
cases closed with a warning issued by the Investigation Committee but that
the power of review should apply to other cases, including those closed with a
letter of advice.
Conduct cases with a senior legal chairman
15.
It is Council policy that, in the vast majority of cases, appropriately trained
medical or lay panel members should chair Fitness to Practise panels.
16.
But it is also Council policy that, on an exceptional basis, there may be some
conduct cases for which a senior legal chairman would be appropriate. The senior
legal chairman would need the same attributes as other chairmen but, in addition,
would be a barrister or solicitor of equivalent standing to a legal assessor. The
distinguishing feature would be the expected legal complexity of the issues likely to
be raised.
17.
The issue to be resolved is whether a legal assessor should sit with a panel
which, exceptionally, had a senior legal chairman. In discussing this, FPPC noted
that it is possible to make out a good case either for having, or for not having, a legal
assessor and senior legal chairman sit with the same panel. On the one hand, there
is no reason to suppose that a senior legal chairman would have any difficulty in
discharging the functions of the legal assessor as well as those of chairman. But, on
the other, the appearances of the fairness of the proceedings is greatly enhanced
through the presence at the hearing of a legal assessor whose function is to offer
impartial legal advice.
18.
It is relevant but not decisive that to dispense with a legal assessor would
require amendment of the Medical Act 1983.
Recommendation: To agree that if, exceptionally, a senior legal chairman is
appointed to chair a conduct case a legal assessor should nevertheless also
sit with the panel.
Planning and testing
19.
The Fitness to Practise Planning Team was established in October 2002 and
was charged with planning the implementation of the result of the Fitness to Practise
review and for testing key features of the new procedures.
20.
The testing of cases began in November 2002. The procedures used for the
testing exercise were based on the main recommendations arising out of the Fitness
to Practise review. The more detailed practical arrangements were largely based on
current procedures.
The testing exercise
21.
The first testing exercise ran 50 anonymised closed cases through the initial
phases of the investigation stage up to the point where a decision is made by a Case
Examiner to conclude a case or refer it forward. A number of Council members
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helpfully participated in the testing programme by fulfilling the role of Case Examiner.
We sought to gather a range of perspectives by using current Screeners, PPC
members and other Council members. All participants were provided with training
and guidance in advance of the testing programme.
22.
The first testing exercise considered a number of key issues central to the
implementation of the new Fitness to Practise procedures. These included:
a.
The new evidential test to be applied at the investigation stage.
b.
The levels of information required to enable the Case Examiner to
make a preliminary decision.
c.
The degree to which cases can be considered effectively by either a
medical or lay Case Examiner.
23.
The second testing exercise looked at the operation of the Investigation
Committee and focused in particular on the practical arrangements for issuing
warnings. This further testing exercise looked at five of the original 50 anonymised
cases, where a Case Examiner had made a decision that the Investigation
Committee should consider the case. For the purposes of the exercise, we
established a model Investigation Committee comprising six medical and lay Council
members. These included current Screeners and members of the PPC, PCC and
REDC.
24.
The testing programme was extremely useful as a means of identifying those
areas that remain unclear in policy terms and concentrating minds on detailed issues
that need to be addressed in either rules or guidance. The most valuable part of the
exercise was the feedback we received from members on the implementation of the
new procedures.
25.
The testing exercises confirmed the validity of many of the assumptions that
had been made when developing policy. However, it also identified other areas
where some refinement of the policy may be necessary. In particular, we need to
undertake further work to identify categories of cases where a warning might be the
appropriate response. Further detailed analysis of cases where reprimands have
been issued by the PCC should provide assistance in developing this guidance.
This is likely to be refined further once the Investigation Committee has been
established.
Rules and guidance
26.
The outcome of the testing is helping to inform the drafting of the rules and
guidance. Drafts will be considered by the Fitness to Practice Policy Committee
before they are discussed at the first meeting of the reconstituted Council on 9 July
2003. FPPC will also identify any refinements to the policy model that may be
necessary in the light of the testing programme.
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Communications issues
27.
The new procedures are intended to enable the GMC to carry out the Fitness
to Practise function more effectively. We are not seeking to attract new and different
types of case to those we already receive.
28.
However, parts of the proposals will, when implemented, impact in new ways.
Examples are:
a.
Changes to the stage at which we disclose to employers that an
investigation is underway.
b.
Introduction of warnings (which may require follow up locally).
c.
Stricter separation of investigation and adjudication.
d.
Removal of the facility for complainants to present their own complaints
at conduct hearings.
e.
Replacement of serious professional misconduct (and comparable
findings in the other procedures) with the concept of impaired fitness to
practise.
29.
Interested parties – such as the defence organisations – clearly need to have
a detailed understanding of the new procedures well before they start. Others – such
as consumer and patient groups and the medical press – will need to be aware of
the main features of the new model and to be able to access more detailed
information as and when needed.
30.
We have placed on our website the 40-page description of the policy model.
We are also taking opportunities to raise awareness, for example, through
presentations to meetings and conferences. As we get nearer to the formal
consultation period on the new rules and guidance we will wish to engage in more
intensive discussions with groups likely to be most affected. We will respond to
requests for meetings with any organisation whom we have consulted.
31.
Once the final shape of the rules and guidance is clear we will need to publish
leaflets and other material for potential respondent doctors, complainants and
referring organisations. That will be a considerable and critically important task which
we should begin once the shape of the rules and guidance is clear.
Recommendation: To note progress on implementing the outcomes of the
review.
Resource implications
32.
Enabling cases to be re-opened brings with it a risk that more dissatisfied
complainants might seek to persuade the GMC to use the power where there is no
basis to do so, thereby creating nugatory work. Safeguards will include the
application of strict criteria.
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33.
Producing new leaflets and other guidance will cost around £50,000. This will
be met within the 2003 budget.
Charitable status
34.
This paper does not contain any proposals which are incompatible with the
requirements of charity law.
Equality
35.
A key principle is that the new Fitness to Practise model must meet Council’s
commitment to operating processes and procedures that are fair, objective,
transparent and free from discrimination. The proposal to adopt a different policy to
disclosure of information about health cases to employers will have benefits for
doctors referred to the GMC on the grounds of apparent health impairment. We will
take advice on the desirability of providing material in languages other than English.
There appear to be no equality or diversity issues arising from the other proposals in
this paper.
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