Council
22-23 May 2001
9b
To Consider
Review of Fitness to Practise: Progress Report
Issue
1.
Progress report on the review of fitness to practise.
Recommendations
2.
a.
That the Fitness to Practise Review Group, together with FPPC,
should continue to work towards a new model for the fitness to practise
procedures within the broad framework set out in the consultation
document (paragraphs 9-10).
b.
To note progress towards developing a new model for the
fitness to practise procedures (paragraphs 11-31).
Further information
3.
Isabel Nisbet 020 7915 3575 (email [email protected]).
Paul Buckley 020 7915 3654 (email [email protected]).
Gordon Lindsay 020 7915 3637 (email [email protected]).
Background
4.
Under the timetable agreed by Council in February 2001, Council will
be asked to consider a model of new fitness to practise procedures in
November 2001. Once Council has decided on the model there will be a need
for legislation before the new procedures can be implemented.
5.
This paper summarises the work which is underway towards
developing the model and describes developments since February 2001. A
separate paper for this meeting [9d] reports on the outcome of the
consultation process on our detailed proposals as set out in Acting fairly to
protect patients: reform of the GMC’s fitness to practise procedures.
6.
The FPPC decided that immediate responsibility for oversight of the
review should continue to rest with the Fitness to Practise Review Group
which it established in 2000 to assist it in taking forward the review. The
Group is chaired by Mr Gentleman. FPPC also decided that the Group should
expand its membership to ensure it had necessary expertise in all key areas
of the review.
7.
FPPC decided that the Group should have the maximum flexibility to
decide for itself how best to mange the work but recognised, given the scale
of the task, that it would be unrealistic for the group to undertake all the work
itself and that it would be necessary to delegate programmes of work to
sub-groups (who would, if necessary, bring in additional members with the
necessary knowledge and experience according to the work they were doing).
This paper also describes how the group is taking forward its remit.
8.
Council will not be making decisions on the structure of the new
procedures until November 2001. In the meantime, the views expressed
during the consultation process will be evaluated by the Group who will report
to FPPC. These views will inform the recommendations which FPPC makes
to Council in November 2001 about the final structure of the new model.
Discussion
Consultation process
9.
As the report on the consultation shows (DN insert item number),
responses to Acting fairly to protect patients: reform of the GMC’s fitness to
practise procedures reveal strong support for the broad direction of travel
which it sets out. Some of the key proposals – for example, the preferred
model for the initial stages – have attracted very favourable comment. There
are differences of view on some of the other proposals, but there is almost
universal recognition of the need for an overhaul of the current model.
10.
It is encouraging that, despite the short timescale, the quality of the
responses has been so high. There have been some exceptionally helpful and
thoughtful responses which have cast fresh light on many of the issues
2
presented in the document, and on some which were not. The Group has not
felt constrained to restrict its work to the particular questions raised in the
document and where other issues have arisen as a result of comments by
consultees, or in other ways, the Group has considered those as well. In
particular, paragraphs [24-28] below record the extension of the Group’s work
to cover an issue not discussed in the consultation document, the way we
describe and explain the end points of fitness to practise processes. The
Group, together with FPPC, will now undertake a careful evaluation of all the
comments which were received which will inform the development of a model
for Council to consider in November 2001.
Recommendation: That the Fitness to Practise Review Group,
together with FPPC, should continue to work towards a new model for
the fitness to practise procedures within the broad framework set out in
the consultation document.
Membership
11.
Annex A lists the expanded membership of the Review Group. Its GMC
members have considerable experience across nearly all the procedures,
although the focus of our proposals is on reform of the conduct and
performance procedures. There is a consensus that, broadly-speaking, the
health procedures work well as they are although there may be some
marginal improvements which should be made.
12.
The Group has added two non-GMC members (in addition to Professor
Rudolf Klein who was already a member). They are Mr Charles Dewhurst, a
solicitor with the Medical Defence Union and Ms Sally Williams, Principal
Researcher with the Consumer Association.
The work of the group
13.
There are four main issues for the Group to consider:
a.
The roles of the Designated Officer-Holder (OH) and the First
Stage Committee (FSC).
b.
Dealing with concerns which fall just short of spm/sdp.
c.
The overhaul of the later stages, in particular, the PCC.
d.
Describing the end points of the fitness to practise procedures.
Roles of the OH and FSC
14.
This stream of work is being led by Mr Nicholls assisted by other
members. Professor Smyth and Miss Hilary Scott, the Deputy Health Service
Commissioner, have been co-opted to assist with this part of the review. The
focus is on mapping out detailed new processes for the initial stages of the
procedures within the framework of the preferred model set out in the
3
consultation document. A particular challenge is to determine what the role of
the OH should be including whether the OH’s functions should be carried out
by an individual or a group. The Health Service Ombudsman and the Crown
Prosecution Service provide models we should consider.
15.
It is important to determine the level of the threshold at which the OH
will refer cases to the FSC. There is also a need to clarify the OH’s role in
relation to identifying cases where a performance assessment is the best way
forward and whether early identification and progression of such cases can be
made to fit with the broader aim of a common first-stage.
16.
So far as the FSC is concerned, the procedure of the Committee needs
to be described and the test it will apply on referral to PCC needs to be clearly
set out.
17.
In one particular respect the Group’s thinking has developed since the
consultation document was sent out. The preferred model envisages that if a
doctor declines the OH's invitation to undergo a performance assessment, the
matter would be referred to the FSC to consider, as the ARC does currently in
the case of decisions by a screener, whether to endorse that decision.
18.
The Group now considers, on reflection, that referral to the FSC in
these circumstances risks replicating the role of the ARC, which it is generally
agreed adds an unnecessary loop. That is because while it is essential that a
doctor have the opportunity to argue before a committee that he or she should
not undergo an assessment, currently the doctor is able to argue the point
twice, first at the ARC and again at the CPP. On reflection, the group has
provisionally concluded that doctors who decline an invitation from the OH to
be assessed should be referred to the CPP. The CPP would have the power
either to endorse or reject the OH’s decision and, if it endorsed it, could direct
the doctor to be assessed.
19.
An outline of the programme of work for this group is at Annex B
Dealing with concerns which fall just short of spm/sdp
20.
This stream of work is being led by Mr Gentleman assisted by other
members. It represents perhaps the area of greatest difficulty for the review.
The challenge is to identify what, if any, the GMC’s role should be where
concerns are raised about a doctor which would not justify removing or
restricting registration but which do reveal, or indicate the presence of,
shortcomings which need to be addressed. There are two major issues:
a.
If the GMC is to undertake a process in such cases, an the
‘floodgates’ risk be avoided (that is, how can we avoid making the
GMC the repository for almost every non-trivial complaint about a
doctor given that this is a role the GMC is not equipped to take on)?
4
b.
Whatever the GMC’s role is to be, can a fair process or
processes be devised which both meet public expectations and retain
professional confidence?
21.
There appear to be two main options, which could either be
complementary or alternatives, and they are sketched out in the consultation
document. One would involve a streamlined committee process leading to a
finding of professional misconduct by the FSC on the basis of a civil standard
of proof. The other would involve the GMC drawing the doctor’s employer or
other responsible authority to the concern which had been raised but without
making a formal finding on it. The purpose would be to ensure that the
concern was addressed through clinical governance or other local processes
to establish if it was justified and, of so, to help the doctor to remedy it.
22.
The Review Group will work up both models in detail before reporting
to FPPC on what recommendations it believes should be to made to Council
in November 2001.
The overhaul of the later stages, in particular, the PCC
23.
This stream of work is being led by Mr Yates assisted by members of
the review group and some external members including a senior legal
assessor (Mr Andrew Pugh QC), an external member of the PCC (Mr Donal
Mc Ferran) and Counsel .The main challenge is to take forward exploration of
the option of moving towards a more inquisitorial model. This will need to be
informed by analysis of existing inquisitorial approaches. But there is also
important work to do on other issues, for example, on developing the
arguments for and against using legally-qualified chairs at PCC.
Describing the end points of the fitness to practise procedures
24.
This fourth stream of work is not explicitly set out in the consultation
document but it is implicit in many of the detailed proposals, and the review
group has decided that it should be given a high priority. In recent years the
GMC has been reluctant to be drawn into this territory on the basis that any
‘definition’ of concepts such as serious professional misconduct would be
superficial and incomplete and would unhelpful divert attention from raising
standards to avoiding unacceptable behaviour, flying in the face of the
strategic direction to focus on good practice rather than highlighting poor
practice. This was exemplified by the replacement, in 1995, of the ‘Blue Book’
with Good medical practice.
25.
The group recognises the force of these arguments but has concluded
that the opportunity presented by the review to establish if it is possible set out
more clearly than we currently do what we mean by ‘spm’ and similar
concepts should, at the very least, be thoroughly explored. In arriving at this
view the group has had regard to a number of factors including:
a.
The recommendations of influential reports such as that from the
PSI that a description of this kind is essential
5
b.
The perception that ‘no action’ decisions on complaints appear
on occasion arbitrary and inconsistent because they are not referred
back to a clear baseline.
c.
The possibility of a lower charge ('professional misconduct') and
the consequent need to be able to differentiate between that and spm.
d.
Initiatives such as the development by the RCGP’s of Good
Medical Practice for GPs which identifies unacceptable practice as well
as promoting good practice.
26.
The approach of the group is to accept that there cannot be a
'definition' of spm/sdp/si: these concepts are both too complex and too
wide-ranging to be susceptible of definition in the way that, for example, a
criminal offence can be defined.. What the group are anxious to explore,
however, is the possibility of adopting a criteria-based approach to declaring
what is unacceptable (or what ‘unfitness to practise means) without
undermining Council’s decision to adopt a positive approach to fostering good
practice. This could take as a starting point the screening decision forms
introduced in 1999 which identify - at one end of the spectrum - matters which
could never be spm/sdp - and at the other - matters which must always be. In
the middle is a clutch of issues mainly around clinical practice where it is a
question of judgement but even here there may be some generic indicators.
Any criteria would explicitly be both illustrative and indicative rather than
exhaustive and mandatory.
27.
It may be that rather than attempt to define three existing concepts
(spm, sdp and serious impairment), a better approach would be to develop a
new, generic, concept of ‘unfitness to practise’ or ‘impaired fitness to practise’
and develop criteria to illustrate it. A single outcome for all the fitness to
practise procedures would not be incompatible with maintaining separate
procedures after the common first stage. The three routes would simply have
a common destination reached by different routes and methods, according to
the nature of the case.
28.
The review group also recognises that it is essential that any guidance
of this kind which was developed does not descend into a loose collection of
offences unrelated to our core standards (which was the criticism made of the
Blue Book). For example, to say baldly that 'theft would call into question
registration' is far less helpful than saying that the GMC regards honesty as
fundamental to good practice and therefore an offence such as theft would
call registration into question. The group intends, therefore, to liase closely
with the Standards Committee in taking forward this work. In the meantime, it
would be very helpful for the group to have the views of members both on the
principles involved in this areas of its work and the practicality of arriving at
meaningful descriptions which are illustrative and not exclusive.
6
Other Issues for the review
29.
There are two major issues – appeals and separation of functions where the Group will not yet be undertaking detailed work.
30.
Work on reviewing appeals against decisions by regulatory bodies is
being carried forward separately in association with the Clinical Disputes
Forum and is at an early stage. As this progresses it will inform, but not
determine, our approach.
31.
On separation of functions, the group’s main task will be to evaluate
responses to the proposal in the consultation document that both investigation
and adjudication should be retained as core functions, separated from each
other, and to provide advice to FPPC.
Staff seminars
32.
The work of the group has been greatly informed by the views
expressed in a series of seminars involving staff from the fitness to practise
directorate which have been held to coincide with the external consultation
process. A number of important suggestions on points of detail and on
broader strategy have emerged from these discussions and the group is
anxious to make continuing use of the unique contribution which the staff can
bring to its work. The group will be exploring ways in which it can do so as the
review progresses.
Recommendation: To note progress towards developing a new
model for the fitness to practise procedures.
Resource implications
33.
There are no direct implications arising directly from this paper. In
presenting the model to Council in November 2001 we will estimate, so far as
is possible, the costs of the new model.
7
Annex A
Fitness to Practise Review Group: Membership
Name
Mr Douglas Gentleman
(Group Chairman)
Mrs Rani Atma
Dr Elizabeth Bingham
Mr Charles Dewhurst
Professor James Drife
Professor Rudolf Klein
Mr Bob Nicholls
Mr Tom Rider
Position
GMC medical member
Professor Nigel Stott
Mr Rodney Yates
GMC medical member
GMC lay member (and FPPC
Chairman)
Principal Researcher, Consumers
Association
GMC medical member
Ms Sally Williams
Professor Frank Woods
GMC lay member
GMC medical member
Solicitor, Medical Defence Union
GMC medical member
Professor of social policy
GMC lay member
Partner, Field Fisher Waterhouse
A1
Annex B
Roles of the Designated Office-Holder and First Stage Committee
Issue
Sub-issues/Comments
Role of the Designated OfficeHolder (OH).
1. Description of role and identification of competencies
required.
2. Selection.
3. Accountability and reporting.
4. Issues about access to medical and legal advice.
5. Powers of investigation (and the role of investigation
generally at the first stage). What impact will more
investigation have and should the OH screen in or out?
6. Disposing of trivial complaints.
7. The threshold of the OH ‘s referral test and its expression in
law.
8. Identification of, and referral to, cases for the voluntary health
procedures (to include consideration of the role of the panel
of six).
9. Procedure where doctor has declined OH’s invitation for
performance assessment (to include review of ARC)
10. Referrals to IOC.
11. Statutory declarations: what value do they add and should
they be abolished?
12. Referrals to the Revalidation Evidence Committee.
13. Role of lay members in no action decisions.
14. Should the OH issue advice in no action cases?
15. Appeals – if to be any- against OH no action decisions.
16. Reviving closed complaints and retention of records.
17. Voluntary erasure cases: should the OH be able to grant VE?
1. Procedure, membership and quorum of the committee.
2. Reporting and accountability.
3. Test for referral to PCC including: (a). threshold; and (b).
evaluation of evidence.
4. Feedback to OH.
5. Appeals – if to be any – against the FSC
6. Reviving closed complaints and retention of records.
7. Voluntary erasure cases.
1. Are our current processes proportionate? Are there
unnecessary checks and balances (for example, do we need
both Rule 5 and Rule 6 in the performance rules)?
Role and Functions of the First
Stage Committee (FSC)
Performance assessments and
health examinations
B1
Annex C
Dealing with concerns which fall just short of spm/sdp
Issue
Sub-issue/Comments
Purpose
1. What is the nature and scale of the
problem and why is the correct process
for such cases (letter of advice)
deficient? What can be learnt from
analysis of PPC cases which are closed
with a letter of advice?
2. Should we be aiming only at ‘near
misses’ or at all suitable cases which
raise concerns but fall short of spm/sdp?
3. Consider what the GMC’s role should be
in the light of nature of cases, criteria in
consultation document, expectations of
stakeholders, imminence of revalidation
and interface with NHS and private
sectors.
1. Should there be a range of outcomes
(e.g. a GMC ‘misconduct’ facility and a
‘referral to local processes facility)?
2. Should ‘professional misconduct’ include
‘poor performance’ (as spm may include
serious concerns about clinical
practice)?
1. What would be the outcomes and
consequences of a finding (e.g. would a
FSC reprimand determine a doctor’s civil
rights and obligations in Article 6 (1)
terms’)?
2. How would the committee function (to
include membership, private or public,
and standard of proof and appeals if
any).
1. What would the communication actually
say?
2. How would any process link with
revalidation processes?
3. How would doctors working outside
managed practice be dealt with?
4. Should advice be offered by the OH as
well as the FSC?
Functions
Models– finding of professional misconduct
Models – referral to local processes
C1
Annex D
The overhaul of the later stages, in particular, the PCC
Issue
Sub-issue/Comments
PCC:
inquisitorial/adversarial
1. What is meant by an inquisitorial approach?
2. Can an inquisitorial approach be reconciled with presumption of
innocence and right to mount a vigorous defence?
3. Is there an inquisitorial model we can learn from?
4. Are there changes we should make in any case to lessen the
trauma of the process? Should we commission some research
(e.g. from past witnesses/doctors)?
5. What impact will the recommendations of the Lord Carlile group
have (e.g. can we expect that atmosphere at PCC will be less
heated if many points of substance are resolved pre-hearing?
PCC: legally-qualified
chairs
1. What are all the arguments for and against and is there any
evidence-base for arguments which are around (a) behaviour of
counsel and (b) perceived increase in submissions raising points
of law?
2. Should we seek views of Lord Chancellors Department and
others in addition to those of consultees?
Arguments for and against clarifying policy intent in legislation (i.e.
that criminal standard of proof applies to PCC fact-finding but
standards of proof are not relevant in other decisions by PCC, CPP
or Health Committee.
1. Choice between: (a) direct referral into performance from
conduct and health; or (b) enabling the PCC and Health
Committee to order an assessment.
2. If (b), how to dispose of cases which reveal sdp.
1. Do we need a quorum of 5 members on every committee?
2. Should committees (especially PCC) be able to impose costs
where a doctor or his legal representatives have caused
significant delay or lost time?
PCC: Standard of proof
Transfer of cases
between the conduct,
health and performance
procedures
Committee procedure
D1
Annex E
Explaining the meaning of serious professional misconduct/seriously
deficient performance and serious impairment.
Issue
Sub-issue/comments
Definitions
1. Merits of criteria-based approaches
building on the screening decision forms.
2. Compatibility of this approach with ethos
of Good medical practice.
3. Merits of a tri-partite (e.g. spm) versus
unitary (e.g. ‘unfitness to practise)
concept.
E1
Annex F
Review of Fitness to Practise: Key Dates 2001
Month
Review
Group
Meetings
March
28 March 2001
April
23 April 2001
May
June
July
August
September
October
November
FPPC Meetings Council
Meetings
3 May 2001
14 June 2001
19 July 2001*
20 June 2001
19 July 2001
10 Sept 2001*
25 October 2001*
18 Sept 2001
1 November 2001
22/23 May 2001
6/7 November 2001
Comments
Consultation
opened
12 March 2001
Consultation
closed
23 April 2001
Council to note
outcome of
initial
consultation
process
Council to
consider model
of new fitness
to practise
procedures and
agree firm
proposals for
consultation
11 December 2001
* Date subject to confirmation
F1