Council
6 – 7 November 2001
10a
To Consider
Review of Fitness to Practise
Issue
1.
The main features of the conclusions of the Review of Fitness to Practise.
Recommendation
2.
Subject to Council decisions on the details in paper 10b, that the model
described in this paper should be recommended to Government as a basis for
legislation in 2002; and that discussions with Government should proceed in order to
produce instructions for a draft Order under S60 of the Health Act 1999
(paragraphs 11-21).
Further information
3.
Isabel Nisbet
Paul Buckley
020 7915 3575
020 7915 3654
[email protected]
[email protected]
Introduction
4.
Since the 1990s we have been reviewing and improving aspects of the fitness
to practise procedures. We have also worked to introduce service standards and
improve our service delivery. However, there are still three separate legal processes,
each set out in complex legislation, to deal with problems which often defy such
classification. We take too long to deal with cases, the processes lack transparency
and they do not command the confidence of the public or the profession. The volume
of complaints received has trebled since the mid-1990s, and a succession of
high-profile cases has exposed our processes to intense public scrutiny. Council
therefore decided that there was a need for a fundamental review of our approach to
fitness to practise, and this began in 1999. The review has now finished and it is the
third main element, along with revalidation and changes to the GMC's constitution
and governance, in our package of reforms. This paper gives an overview of the
proposals for change to the fitness to practise procedures. It is intended to provide a
broad picture to inform Council's consideration of the detailed proposals in paper
10b.
5.
Briefly, the proposals are for a single system for dealing with all fitness to
practise concerns. It is divided into two stages, ‘investigation’ and ‘adjudication’,
each to be carried out by different people. We have retained the strengths of the
current systems, notably the availability of formal voluntary procedures, the use of
evidence based on assessments, and the more collegiate approach to casework
developed by the current screeners. We have also tried to remedy systemic
weaknesses, streamline the processes by cutting out unnecessary transactions, and
make them more understandable. We have sought to apply the spirit as well as the
letter of human rights legislation to make sure that the new model is fair. Our
systems need to be capable of dealing with high volumes of complaints in a
reasonable time. They should be underpinned by quality assurance and audit. They
recognise that we should link responsibly with other local and national systems of
quality assurance and public protection, so that problems are dealt with as speedily
as possible and at the appropriate level.
6.
When considering the proposed changes to fitness to practise, it is important
to envisage them in operation in a world where the other reforms are in place.
Revalidation will mean that the GMC is engaged continually with all doctors, not just
episodically with some. Most doctors (notably those employed or contracted by the
NHS) will have regular appraisal. National quality assurance organisations
(including, in England, the National Patient Safety Authority and the National Clinical
Assessment Authority) will be operational and experienced. The GMC will be a
smaller Council of 35 members, who will be concerned with the core GMC functions.
Some of the functions hitherto carried out by the 104 members of the current Council
will have to be done by others, and the Governance Working Group has been
considering the consequences of that (see paper 12c).
2
Background
7.
The review built on work done over several years to scrutinise and improve
aspects of the fitness to practise procedures. A major milestone was the introduction
of the performance procedures with effect from 1997. We opened our processes to
external scrutiny by researchers (including the Policy Studies Institute who reported
on our initial handling of complaints1) and two working groups were set up by the
FPPC2 to review aspects of the conduct procedures. In November 1999, Council
considered a document raising fundamental questions about the fitness to practise
procedures, and it was the basis of a series of seminars in the early months of 2000.
In May 2000 Council approved proposals by the FPPC for immediate legislation,
including changes to the conditions for restoration following erasure by the PCC and
wider scope to make interim orders restricting the registration of doctors still under
investigation. The FPPC was also commissioned to consider the more fundamental
issues raised by the discussion document, and to develop a model for reform of the
procedures. This work was supervised by a review group, chaired by
Mr Douglas Gentleman and reporting to the FPPC.
8.
Proposals for reform3 were issued for consultation in March 2001 and the
responses, very largely supportive of the preferred options, were reported to Council
in May 2001. FFPC was invited to 'continue to work towards a new model for fitness
to practise procedures within the broad framework set out in the consultation
document'. Since then, the review group has done more detailed work (largely
through sub-groups) on four aspects of the proposals:
a. Investigation (the initial stages of the procedures).
b. Dealing with concerns which are important but not so serious as to call the
doctor's registration into question
c. Adjudication: determining whether a doctor's fitness to practise is impaired
d. (Jointly with the Standards Committee) what is meant by impaired fitness
to practise
The detailed proposals in paper 10b reflect the outcome of this work.
9.
The Government's NHS Plan for England invited the GMC to consider in
particular one aspect of the fitness to practise procedures, namely the standard of
proof to be used in findings against doctors. The GMC commissioned the King's
Fund to research a background paper on the question, and in December 2000 a
conference was held at the King's Fund, chaired by Lord Lester QC, a leading expert
1
Isobel Allen, The Handling of Complaints by the GMC: a Study of Decision-Making and Outcomes,
Policy Studies Institute, London, 2000. See also Morgan, White, Fenwick and Smith, An Evaluation of
the General Medical Council's Health Procedures, King's College London and University of Leeds,
1999
2
The Professional Conduct Committee Working Group, chaired by Dr Jeremy Lee-Potter; The
Screening and Preliminary Proceedings Committee Working Group, chaired by Dr Robin Steel.
3
Acting fairly to protect patients: reform of the GMC's fitness to practise procedures, GMC, March
2001
3
in human rights law, who subsequently produced a report. Our proposals on the
standard of proof are consistent with his conclusions4.
10.
Most recently, the review group has worked to bring together all the detailed
work done and to try to ensure that the resulting model is coherent, and meets the
criteria which Council agreed for evaluating the proposals (these are listed in Annex
A). The emerging model has been discussed with Council members at meetings of
GMC committees and at a series of members' seminars during October 2001.
Helpful informal meetings have also been held with outside organisations and
individuals. As a result, some significant changes have been made, notably to
simplify the model and to make sure that existing strengths are not lost.
Main themes
11.
The main themes of the proposals are:
a. Streamlining and speeding up our processes without sacrificing fairness.
Delays and backlogs are the aspects of our current processes which are most
criticised by doctors subject to complaint, complainants, the profession and
the wider public.
b. Separation between the functions of 'investigation' and 'adjudication'. The
consultation paper earlier in 2001 proposed that there should be a clear divide
between, on the one hand, those who investigated concerns about doctors
and prepared the GMC's case as 'prosecutor'; and, on the other, the panels
which heard the cases. There are various ways of putting this concept into
practice, but the model approved by Council in May 2001, following responses
to consultation, saw the 'investigations' function, based on the principles of
Good Medical Practice, as core to the GMC, with the 'adjudication' function
kept at arms’ length but still within the broad ambit of the GMC.
c. A holistic approach to fitness to practise, bringing together the three
historically separate procedures (conduct, performance and health), but
retaining the strengths of the different forms of evidence at the adjudication
stage.
d. Linking responsibly with wider systems of quality assurance and
recognising that many concerns are best dealt with locally.
e. Responding proportionately to concerns which fall short of the most
serious, through a fair process but avoiding swamping the GMC with trivial
complaints.
f. Briefer, enabling, legislation, with flexibility to make administrative
changes in the light of experience.
The proposed model is illustrated in the diagram at Annex B.
4
The full texts of the King's Fund background paper and Lord Lester's report can be found on:
www.kingsfund.org.uk/gmc
4
Investigation
12.
Investigation will be a single stage under the supervision of a committee of the
new Council, provisionally called the ‘Investigations Committee’. It will be able to
delegate functions, both to staff of the office, who (as now) would close cases which
were clearly not appropriate for the GMC, and also to ‘Case Examiners’, who will be
contracted by the GMC to deal with some categories of cases. The Case Examiners
could have a variety of professional backgrounds, but we consider it an important
principle that some should be medically qualified. They will be appointed by selection
against competencies and work at the GMC’s office(s) (though in the future those
might not be exclusively in London). There will also be provision for medical and
legal advice at the investigations stage. The principal role of the Case Examiners will
be to 'screen out' cases which would be closed, and their work will be subject to
quality assurance by the Investigations Committee. They could include the
successors to the current health screeners and performance case co-ordinators. The
proposals listed in paper 10b go into more detail about the Case Examiners' role,
and there is time for this to be considered further in the context of instructions for the
rule changes which will be required in due course. The main principles are that the
Investigations Committee should be able to delegate to contracted case examiners
and that they will need to work together to ensure consistency and to obtain the
added value of lay/medical discussion which is one of the strengths of the current
screening arrangements.
13.
The current formal voluntary procedures, whereby doctors can accept
undertakings aimed to help him or her to be rehabilitated, are strengths which we
propose to retain virtually unchanged. However, in other respects the investigation
stage would be considerably streamlined, bringing together the several tests applied,
and eliminating loops in the current processes which do not carry cases forward.
14.
The Investigations Committee will have a quality assurance role covering all
aspects of the investigations stage, including the work carried out on their behalf by
the Case Examiners. It will consider certain categories of case, and would decide
whether they met the new test (see below) for referral for adjudication.
15.
A single test will be applied at the conclusion of the investigations stage (in
contrast to the variety of distinct but very similar tests applied in the comparable
stages of the three procedures now). The single test will be higher than that
currently applied by screeners and clearer than that currently applied by the PPC. It
will be along the lines of:
“Is there a realistic prospect of establishing that the doctor’s fitness to practise
is impaired to a degree requiring action on his or her registration?”
If the answer is “Yes”, the doctor will be referred to an adjudication panel. If it is “No”,
the case may be closed with no action; a letter of advice may be issued to the
doctor, or the Investigations Committee may tell the doctor that they are minded to
issue a caution (comparable to a "reprimand" in the current conduct procedures).
16.
If the doctor consents to a caution, it will be issued and remain on the doctor’s
record for five years (the length of a revalidation cycle). If the doctor does not
5
consent, the matter will be able to be referred to an oral hearing before a panel (part
of the “adjudication” set of functions) which would use a sliding civil standard of proof
for findings of fact.
Adjudication
17.
Adjudication will be a separate function from investigation. It will be carried out
by panels, which will be smaller than at present and will not be 'committees' of the
GMC. Members of the new Council of 35 will not be eligible to sit on any adjudication
panels. The Governance Working Group has been considering how panel members
might be identified and selected, and this is discussed further in paper 12c.
18.
All adjudication panels will ask a single question:
“Whether the doctor’s fitness to practise is impaired [by misconduct, poor
performance or ill-health] to a degree requiring action on registration.”
Thus the foundation of fitness to practise findings, as of revalidation and other
functions of the GMC, will be Good Medical Practice. It will not be mediated by
separate concepts for each process (for example, ‘serious professional misconduct’)
which have historically defied definition. Annex C to Paper 10b explores the meaning
of ‘fitness to practise’ in more detail.
19.
Although adjudication will address a single question and have a single
outcome, a judgement about impaired fitness to practise, we propose to retain the
separate processes for conduct, health and performance, but with additional scope
for cross-referral and for panels to ask for different kinds of evidence. In accordance
with the conclusions of Lord Lester’s Report (see paragraph 9 above), findings of
fact by adjudication panels with power to affect a doctor’s registration will be
determined by the criminal standard of proof.
20.
There are proposals to improve the process for conduct cases referred to
adjudication panels. We were invited to consider the scope for a more 'inquisitorial'
approach, but none of the models of that kind which we studied seemed wholly
appropriate. Instead, we sought to import good practice from different models.
Council has already approved the implementation of recommendations by a
sub-group chaired by Lord Carlile of Berriew (Alex Carlile QC, formerly a lay member
of Council) to introduce a process of pre-hearing case management, legally
supervised and involving earlier exchanges of evidence and time-tabling. A ‘book’ of
agreed evidence would be available to panel members before the case started, and
it would not be necessary for it to be read at length into the record, as at present.
Our performance hearings have shown the benefits of such preparation. We also
intend to work up explicit standards of witness care for our hearings.
6
Next steps
21.
The papers at item 10b contain the 'worked up model' which Council was
promised. There is scope to discuss some points of detail further, particularly those
which would not require to be included in the proposed Order to amend the Medical
Act. However, there is sufficient detail in these papers to enable Council to consider
the proposals as a whole. The review has now been completed and it is time for
decisions. It has lasted two years, there have been two series of Council seminars,
one at the beginning and one at the end, and the direction of travel was approved by
Council in
May 2001, following a consultation exercise. These proposals are the
last main component of our package of reforms, and are rightly expected to be
implemented together with revalidation and the governance changes. Subject to
Council’s consideration of the details in paper 10b, Council is invited to agree that
the proposed new model should be recommended to Government as a basis for
legislation in 2002; and that work should proceed to produce instructions for a draft
Order under S60 of the Health Act 1999.
Recommendation: Subject to Council decisions on the details in paper 10b,
that the model described in this paper should be recommended to
Government as a basis for legislation in 2002; and that discussions with
Government should proceed in order to produce instructions for a draft Order
under S60 of the Health Act 1999.
Resource implications
22.
There will be administrative costs incurred by the further work required to plan
implementation of the proposals and a need to procure legal advice and legal work
on drafting new Rules. For the longer term, Annex G to paper 10b sets out some
broad projections of volume of cases and the financial impact of the new model. The
new model aims to reduce unnecessary transactions and eliminate disproportionate
processes. As the detailed planning progresses, we shall develop more detailed
statements of the financial impact in the short, medium and long term.
7
Annex A
Criteria for evaluating proposals for change
(from Acting fairly to protect patients: reform of the GMC’s fitness to
practise procedures, GMC, 2001, para 16)
Procedures and processes must be:
a.
Fair, objective, transparent and free from discrimination.
b.
Effective in protecting the public interest.
c.
As prompt as is consistent with achieving fairness.
d.
Proportionate in process and outcome.
e.
Understandable – to doctors and the general public
f.
Compatible with the requirements of the European Convention of
Human Rights )now incorporated into national law by the Human
Rights Act 1998)
g.
An effective and distinct part of a wider framework for protecting
patients, including measures taken by the NHS and other employers.
h.
Regarded with confidence by the public and the profession.
i.
Compatible with the view that the GMC’s core role is to maintain the
medical register.
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