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 The Availability of Information about Doctors Print version CHAPTER ONE - Introduction  

Reports > The Fifth Report > RECOMMENDATIONS > 
The General Medical Council

The General Medical Council’s Role in the Wider Regulatory Framework

49. The GMC should ensure that its publications contain accurate and readily understandable guidance as to the types of case that do and do not fall within the remit of its FTP procedures.

Separation of Functions

50. There must be complete separation of the GMC’s casework and governance functions at the investigation stage of the new FTP procedures and this must be reflected in the Rules.
51. The adjudication stage of the FTP procedures must be undertaken by a body independent of the GMC. This body should appoint and train lay and medically qualified panellists and take on the task of appointing case managers, legal assessors (if they are still necessary) and any necessary specialist advisers. It should also provide administrative support for hearings.
52. Consideration should be given to appointing a body of full-time, or nearly full-time, panellists who could sit on the FTP panels of all the healthcare regulatory bodies.

The Statutory Tests

53. The GMC should adopt clear, objective tests to be applied by decision-makers at the investigation and adjudication stages of the FTP procedures. The tests that I recommend are set out at paragraphs 25.63 and 25.67-25.68. The tests should be incorporated into the Medical Act 1983 and/or the Rules. The draft Guidance for FTP panellists should be amended so that it is consistent with the provisions of Section 35D of the Medical Act 1983 and rule 17(2)(k) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (the November 2004 Rules).

A New Route to Impairment of Fitness to Practise

54. The Medical Act 1983 should be amended to add a further route by which there might be a finding of impairment of fitness to practise, namely ‘deficient clinical practice’.

Standards, Criteria and Thresholds

55. Urgent steps should be taken to develop standards, criteria and thresholds so that decision-makers will be able to reach reasonably consistent decisions at both the investigation and the adjudication stages of the FTP procedures and on restoration applications.
56. The Council for the Regulation of Healthcare Professionals (now known as the Council for Healthcare Regulatory Excellence (CRHP/CHRE)) should be invited to set up a panel of professional and lay people (similar in nature to the Sentencing Advisory Panel) which should assist in the process of developing the necessary standards, criteria and thresholds.
57. Steps should be taken to ensure that FTP panels determining cases in which issues of deficient professional performance arise apply a standard which is no lower than that set for admission to general practice.

The Investigation Stage

The Preliminary Sift: the Test for Jurisdiction

58. Rule 4 of the November 2004 Rules, which sets out the test to be applied by the Registrar on receipt of an allegation, should be amended to give greater clarity. The test that I recommend is set out at paragraph 25.115.

Preliminary Discussions with and Disclosure to Employers and Primary Care Organisations

59. The November 2004 Rules should be amended to make formal provision for the GMC routinely to communicate with employers and with primary care organisations (PCOs) before deciding what action should be taken in response to an allegation and giving the GMC power to require from the doctor the necessary details to enable it to make such communication. Communication should take place in all cases other than in the case of an allegation which is so serious that it obviously requires further investigation or in the case of an allegation which is plainly outside the GMC’s remit.

The Treatment of Convictions

60. Where a doctor has committed a criminal offence in respect of which a court has imposed a conditional discharge, that offence should be dealt with by the GMC in the same way as if it were a criminal conviction.

The Power to Direct Investigations

61. The November 2004 Rules should be amended so as to give case examiners, and Investigation Committee (IC) panels in cases where the case examiners have disagreed, the power to direct investigations.

Case Examiners

62. Case examiners should be advised that they should not take mitigation into account when making their decisions and that they should consult a lawyer if they are in any doubt as to whether the available evidence is such that there is a realistic prospect of proving the allegation.

Performance and Health Assessments

63. The November 2004 Rules should be amended to give case examiners, and IC panels in cases where the case examiners have disagreed, the power to direct that an assessment of a doctor’s performance and/or health should be carried out.
64. The GMC should develop an abridged performance assessment to be used as a screening tool in any case in which an allegation is made which potentially calls into question the quality of a doctor’s clinical practice.
65. In order to avoid doctors undergoing multiple performance assessments, the GMC should investigate the development of a modular assessment.
66. The November 2004 Rules should be amended to include a provision whereby reports of performance assessments should be disclosed by the GMC to doctors’ employers or PCOs as soon as possible after receipt.

Letters of Advice

67. The power to send letters of advice should be incorporated into the Rules and clear criteria for the sending of such letters should be prepared.

The Issuing of Warnings at the Investigation Stage

68. The GMC should reconsider its proposals for the issuing of warnings at the investigation stage.

The Procedure for Cancelling Hearings before a Fitness to Practise Panel

69. Rule 28 of the November 2004 Rules, which provides for the cancellation of hearings before a FTP panel, should be amended so as to provide that a decision to cancel must be taken by an IC panel and that the reasons for the cancellation must be formally recorded. Both the doctor and the maker of the allegation should be notified in advance of the fact that cancellation is being considered and both should have the opportunity to make representations.
70. There should be regular monitoring and audit of the number of applications to cancel FTP panel hearings and of decisions to cancel and the reasons for those applications and decisions. Those reasons should be scrutinised with a view to taking steps to minimise the number of cases in which referrals are subsequently cancelled. The number and reasons should be placed in the public domain on an annual basis.

Consensual Procedures

71. If the GMC pursues its present intention to extend the use of voluntary undertakings to cases other than those raising issues of adverse health or deficient performance, the disposal of such cases should take place in public at the adjudication stage and not in private as part of the investigation stage.

Revival of Closed Allegations

72. The November 2004 Rules should be amended to make provision for the revival of closed allegations. The usual ‘cut-off’ period should be five years but it should be possible, in exceptional circumstances and in the interests of patient protection, to reopen a case at any time.

Review of Investigation Stage Decisions

73. Reviews of investigation stage decisions should be carried out by an independent external commissioner. The circumstances in which a review may take place should be extended to cover decisions of the Registrar to reject an allegation rather than to refer it to a case examiner.

Voluntary Undertakings in Cases with a Health Element

74. The November 2004 Rules should be amended so as to provide that the arrangements for the obtaining and consideration of health assessments and for the management and supervision of doctors who are the subject of voluntary undertakings relating to health should be directed by a medically qualified case examiner, who should fulfil the functions previously carried out by a health screener. If a case is to be closed on the basis of a health assessment, the decision should be taken by two case examiners, one medically qualified and one lay, and, if they disagree, by an IC panel.

Voluntary Undertakings in Cases with a Performance Element

75. The November 2004 Rules should be amended so as to provide that the arrangements for the obtaining and consideration of performance assessments and for the management and supervision of doctors who are the subject of voluntary undertakings relating to performance should be directed by a medically qualified case examiner, who should fulfil the functions previously carried out by a performance case co-ordinator. If a case is to be closed on the basis of a performance assessment, the decision should be taken by two case examiners, one medically qualified and one lay, and, if they disagree, by an IC panel.

The Adjudication Stage

Investigation

76. There should be an explicit power in the Rules to allow the GMC to undertake any further investigations it considers necessary after a case has been referred to a FTP panel and before the panel hearing.

Case Management

77. In the event that the GMC retains control of the adjudication stage, the GMC committee charged with governance of the adjudication stage should audit the work of case managers. Case management should apply to cases with a performance element.
78. FTP panellists should be warned that they should exercise caution about drawing adverse inferences from a failure to comply with case management orders.

Legally Qualified Chairmen

79. In the event that the GMC retains control of the adjudication stage, it should appoint a number of legally qualified chairmen who should, as an experiment or pilot, preside over the more complex FTP panel hearings. The results of the pilot scheme should be scrutinised to see whether there are benefits, whether in terms of the improved conduct of hearings, more consistent outcomes, improved reasons and/or fewer appeals.

Evidence

80. As part of their training, FTP panellists should be advised about their discretion to admit hearsay evidence and other forms of evidence not admissible in a criminal trial. Panellists should also be advised, during training, that it is entirely appropriate for them to intervene during FTP panel hearings and to ask questions if they feel that any issue is not being adequately explored.

Standard of Proof

81. The GMC should reopen its debate about the standard of proof to be applied by FTP panels. The civil standard of proof is appropriate in a protective jurisdiction. It is arguable that the criminal standard of proof is appropriate in a case where the allegations of misconduct amount to a serious criminal offence.

Notification of the Proposed Outcome of a Hearing

82. The GMC should abandon its intention to notify doctors, at the same time as sending notice of referral of their case to a FTP panel, of the outcome it will be seeking at the FTP panel hearing.

Reasons for Findings of Fact

83. FTP panels should be required to give brief reasons for their main findings of fact.

Referral of a Case after a Health or Performance Assessment

84. Rule 17(5)(b) of the November 2004 Rules (which permits a FTP panel, on receipt of a report of a health or performance assessment, to refer the allegation back into the investigation stage for consideration of voluntary undertakings) should be revoked.

Evidence to Be Received

85. Rule 17(2)(j) of the November 2004 Rules should be amended to make clear what types of further evidence should be received before a FTP panel decides whether a doctor’s fitness to practise is impaired. That evidence should include the doctor’s previous FTP history with the GMC or any other regulatory body. Rule 17(2)(l) should be amended to make clear what categories of evidence might be received after a finding of impairment of fitness to practise but before determination of sanction.

Warnings

86. The Medical Act 1983 should be amended to permit a FTP panel to issue a warning in a case where it has found that a doctor’s fitness to practise is impaired but not to a degree justifying action on registration.

Undertakings

87. Rule 17(2)(m) of the November 2004 Rules, which permits a FTP panel to take into account written undertakings entered into by a doctor when deciding how to deal with the doctor’s case, should be revoked. If it is to be retained, the rule should be amended to make clear that undertakings can be taken into account only at the stage of deciding on sanction, after findings of fact and a decision about impairment of fitness to practise have been made. In that event also, provision should be made within the Rules for supervision of the doctor to ensure compliance with undertakings, for the holding of review hearings in cases where a doctor has given undertakings and for dealing with a breach of an undertaking.

The Need for Supervision

88. Throughout the period that a doctor’s registration is subject to conditions imposed by a FTP panel or to voluntary undertakings, someone within the GMC (preferably a case examiner) should take responsibility for monitoring the doctor’s progress and for ensuring, so far as possible, that s/he is complying with the conditions imposed or undertakings given.
89. In every case where a doctor is continuing to practise subject to conditions or voluntary undertakings, a professional supervisor should be appointed to oversee and report on the doctor’s progress and on his/her compliance with the conditions or undertakings. In a case where a doctor’s health is an issue, a medical supervisor should be appointed.
90. Any breach of a condition imposed by a FTP panel or of a voluntary undertaking (save for the most minor breach) should result in the doctor being referred back (or referred) to a FTP panel so that consideration can be given to imposing a sanction which affords a greater degree of protection to the public.

Review Hearings

91. The November 2004 Rules should be amended to ensure that there is at least one review hearing in all cases where a period of suspension or conditions on registration have been imposed, unless there are exceptional reasons why no such hearing should take place.
92. The arrangements set out in the draft General Medical Council (Fitness to Practise) Rules 2003 (the 2003 draft Rules), whereby any necessary gathering of evidence in preparation for a review hearing would be undertaken by a specially appointed case examiner, should be reinstated.
93. In all but exceptional cases, a doctor whose registration has been suspended should be required to undergo an objective assessment of his/her fitness to practise before being permitted to return to practice. That assessment should be considered by a FTP panel at a review hearing and a decision should be taken as to the doctor’s fitness to practise. A doctor who has been the subject of conditions on his/her registration should be required to go through the same process. Doctors who are the subject of voluntary undertakings should also be required to undergo such an assessment before their undertakings are permitted to lapse.
94. The GMC’s primary role should be one, not of remediation of doctors, but of protection of patients. If a doctor who is subject to conditions or voluntary undertakings undergoes an assessment in the circumstances described above, and the assessment reveals that s/he does not meet the required standard, consideration should be given to taking the steps necessary to remove the doctor from practice. He or she should not be permitted to ‘limp on’ with repeated periods of conditional registration and no real hope of meeting the standard for unrestricted practice.

Applications for Restoration to the Medical Register

95. The arrangements set out in the 2003 draft Rules, whereby any necessary gathering of evidence in preparation for a restoration hearing should be undertaken by a specially appointed case examiner, should be reinstated.
96. Every doctor whose application for restoration to the register has reached the second stage of the procedure should be required to undergo an objective assessment of every aspect of his/her fitness to practise. The doctor should not be restored to the register unless s/he has met the required standard.
97. Doctors who are restored to the register should be required to have a mentor whose task it will be to monitor, and report to the GMC on, their progress in practice.

Cases involving Drug Abuse

98. A thorough investigation of the circumstances underlying allegations of misconduct involving drug abuse should be conducted. The full facts should be established, including the circumstances in which the abuse began.
99. The GMC should commission research into drug abusing doctors and the outcomes of their cases following supervision under the health procedures.

Transparency

100. Every aspect of the FTP procedures in which either doctors or makers of allegations have a direct interest should be set out in the Rules. In addition, the GMC should publish a FTP manual, containing all its relevant Rules and its guidance for panellists, case examiners and staff, together with any relevant Standing Orders.
101. Clear statistical information should be collected and published by the GMC. The GMC should publish an annual report which should amount to a transparent statement of the year’s activities in respect of the FTP procedures.

Audit

102. The GMC should carry out audits of various specific aspects of its procedures, in addition to its other routine auditing activities.

Revalidation

103. The arrangements for revalidation should be amended so that revalidation comprises, as required by section 29A of the Medical Act 1983, an evaluation of an individual doctor’s fitness to practise.
104. The annual report referred to at 101 above should include clear statistical information about the number of applications for revalidation and their outcomes. It should amount to a transparent statement of the year’s revalidation activities.

Independent Review

105. In three to four years’ time, there should be a thorough review of the operation of the new FTP procedures, to be carried out by an independent organisation. This task should be undertaken by or on the instructions of the CRHP/CHRE.

Constitution

106. The GMC’s constitution should be reconsidered, with a view to changing its balance, so that elected medical members do not have an overall majority. Medical and lay members who are to be appointed (by the Privy Council) should be selected for nomination to the Privy Council by the Public Appointments Commission following open competition.

Public Accountability

107. The GMC should be directly accountable to Parliament and should publish an annual report which should be scrutinised by a Parliamentary Select Committee.

The Council for Healthcare Regulatory Excellence

108. Section 29 of the National Health Service Reform and Health Care Professions Act 2002 should be amended so as to clarify that the Act provides for the CRHP/CHRE to appeal against ‘acquittals’ and findings of ‘no impairment of fitness to practise’, as well as in respect of sanctions which it believes were unduly lenient.
109. There should in the future be a review of the powers of the CRHP/CHRE with a view to ascertaining whether any extension of its powers and functions is necessary in order to enable it to act effectively to ensure that patients are sufficiently protected by the GMC.


   The Availability of Information about Doctors Print version CHAPTER ONE - Introduction    


Published by The Shipman Inquiry
© Crown Copyright 2001