General Medical Council s consultation; Reviewing how we deal with concerns about doctors The Law Society of Scotland s response November 2014

Transcription

1 Consultation Response General Medical Council s consultation; Reviewing how we deal with concerns about doctors The Law Society of Scotland s response November 2014 The Law Society of Scotland 2014

2 Introduction The Law Society of Scotland aims to lead and support a successful and respected Scottish legal profession. Not only do we act in the interests of our solicitor members but we also have a clear responsibility to work in the public interest. That is why we actively engage and seek to assist in the legislative and public policy decision making processes. To help us do this, we use our various Society committees which are made up of solicitors and nonsolicitors to ensure we benefit from knowledge and expertise from both within and out with the solicitor profession. The Health and Medical Law Sub Committee of the Law Society of Scotland, welcomes the opportunity to consider the General Medical Council s consultation; Reviewing how we deal with concerns about doctors on changes to sanctions, guidance and the role of apologies and warnings. The committee has the following comments to put forward in response to the questions posed in the consultation document. General Comments There appears to be two themes contained within this consultation- safety of the patient and the confidence of the public. The former, we will address through our responses to the individual questions but we hope that it may be helpful to highlight a couple of points in relation to the latter. We understand that public confidence has taken on a particular significance following the case of R v Harold Fredrick Shipman (2000) and the subsequent related inquiry and report 1. Whilst we support the need for vigilance, we believe that this should also be proportionate. The National Health Service Reform and Health Care Profession Act of 2002 which followed in the wake of calls for more accountability of doctors, gave the Council for Healthcare Regulatory Excellence, a specific power to appeal the decisions of panels on the basis of undue leniency. 2 In other words, because panels are now focussed on the preservation of public confidence, a sanction may be deemed unduly lenient if its outcomes are on the safety of patients and do not give enough attention to public confidence. 1 Shipman Inquiry Final Report 2005: 2 The National Health Service Reform and Health Care Profession Act of 2002, s29. The Law Society of Scotland 2014 Page 1

3 We will say more on these in our response to the subsequent questions. A final general point is whilst we appreciate the usefulness of providing case studies to illustrate a point, we felt that some of these examples were extreme and didn t really provide examples of the grey areas that tend to be more challenging in terms of resolution. Section 1: Changes to our sanctions guidance. We note that the underpinning purpose of Section 1of this consultation is to change the guidance on sanctions that can be used by fitness to practice panels of the Medical Practitioner Tribunal Service (MPTS). Our understanding is that currently, a doctor may be removed from the medical register when their behaviour is fundamentally incompatible with being a doctor. 3 The proposal now appears to broaden this to include other situations; our response will now address the specific questions in this section. Q1. Not being influenced by personal consequences of sanctions on doctors We partially agree. Whilst panels should not be influenced by the personal consequences for the doctor of any sanction, societal values and expectations of doctors should be taken into account. We note that this has been acknowledged in the consultation. Having taken account of the public interest, they must act proportionately. We believe that societal values are maintained if a doctor does not lose his livelihood over a minor mistake that does not result in serious harm. Q2. Taking action in all cases where a doctor s fitness to practise is impaired unless there are exceptional circumstances We agree. Panels should take action where a doctor s fitness to practise is impaired unless there are exceptional circumstances. We imagine that panels will be able to recognise exceptional circumstances and therefore doubt whether a definition is required, although it may be helpful to rule out some circumstances as not being exceptional. 3 General Medical Council (2014) Reviewing how we deal with concerns about doctors Engli sh pdf [Accessed 30 October 2014] The Law Society of Scotland 2014 Page 2

4 Q3. Maintaining public confidence even when a doctor has remediated We partially agree. Interim orders 4 suspending registration are used for the protection of the public interest. We note that there has been a large increase in interim order hearings;784 interim order panel hearings took place in 2012 a 60% increase from 2011 and In 2012, doctors were given sanctions in 543 hearings (69%), compared with 394 (81%) in 2011 whilst 4 sanctions were made between We also note that there is considerable case law in this area but there does appear to be divergent interpretations. Davis J, in R (on the application of Shiekh) v General Dental Council 6 stated that the bar was set high, that suspension would only be justified as in the public interest in a relatively rare case, and that although statute did not explicitly apply a necessity test to the public interest ground, necessity was an appropriate yardstick 7. In Yeong v GMC 8 the judge emphasised that interim orders should only be used to address immediate risk to patients: It will not typically be appropriate for the Interim Orders Panel at the interim stage...to impose sanctions on grounds based simply on the importance in the public interest of maintaining clear standards of behaviour, as distinct from dealing with an immediate risk posed by a practitioner in his relation to his treatment of patients. Interestingly, the same case noted that... the efforts made by the practitioner to address his problems and to reduce the risk of recurrence of such misconduct in the future may be of far less significance than in other cases. The GMC s own referral criteria used by its Interim Orders Panels 9 do appear to restrict themselves to a fairly narrow interpretation, using interim orders only in extreme cases and infrequently on the grounds of public interest alone 10. We would support this view and care should be exercised that it should not be used in itself, as a mechanism to simply to reinforce public confidence. 4 Made under s 41A Medical Act Jackson, E (2013) Medical Law, Text Cases and Materials,(3 rd edition). Oxford:OUP at p. 155 and GMC (2012) Annual Statistics. Available from: [Accessed 31 October 2014] 6 [2007] EWHC 2972 (Admin) 7 [2007] EWHC 2972 (Admin) at [16] 8 [2009] EWHC Interim Orders Committee: Referral Guidance (GMC, 2008) (revised 7 th August 2009). 10 Case, P., (2011) Putting Public Confidence First: Doctors, Precautionary Suspension, and the General Medical Council. Medical Law Review, 19, pp The Law Society of Scotland 2014 Page 3

5 Q4. Taking more serious action in specific cases We partially agree. On balance it is helpful for panels to consider more serious action where cases involve a failure to raise concerns. We recognise the institutional and cultural difficulties inherent in this. As with many professions, there is a powerful hierarchical structure in place which may lead to ostracization, especially if the colleague is more junior to the colleague that they are reporting. Conversely, defensive over-reporting by doctors of minor issues may also be a challenge. We acknowledge that statutory provision is in place which aims to protect employees from dismissal and victimization 11 however, the Mid- Staffordshire Hospital inquiry 12, highlighted that healthcare professionals with concerns were discouraged from raising them. We would have concern over imputed knowledge. It is well recognised in even the most serious areas that an individual for instance may well have no reason to act in relation to a colleague and we have concern over Regulators being invited to operate a test imputing knowledge even on a rebuttable basis essentially on the basis of hindsight. Q5. Failure to work collaboratively with colleagues We disagree. On consideration of the wording used in the proposal, we believe that there is a significant difference between failure to work collaboratively and action that may effectively result in criminal sanction. For example, sexual harassment, bullying, violence [which may result in the risk of patient safety], fall into a different category of seriousness. We suggest that failure to work collaboratively should be in a separate category and panels clearly advised on the distinctions to avoid any ambiguity. Q6. Abuse of professional position We partially agree. We believe that there are existing provisions in place that would facilitate the removal of doctors from the medical register if predatory behaviour could be shown. We also considered the use of terminology here, particularly in relation to the use of the word predatory. We felt that the panel should be given clear guidance on distinguishing between behaviour which is predatory to that which is instead inappropriate. We acknowledge that the interests of the patient should always be paramount, particularly 11 The Public Interest Disclosure Act Robert Francis Inquiry report into Mid-Staffordshire NHS Foundation Trust. London:Department of Health The Law Society of Scotland 2014 Page 4

6 where they are vulnerable and note that this would be a subjective decision for the panel to assess in each case. Q7. Discrimination against patients, colleagues and other people We partially agree. Panels should be able to consider action where cases of discriminatory behaviour is shown however this should be within a clinical context and the public confidence should be but one element considered within such a parameter. Q8. Doctors lives outside medicine This is a very broad provision, and there is an overlap with the factors listed and those incorporated into other sections of the proposal. The committee questioned whether a list was required or whether the panel could exercise their discretion in each case. Conduct would clearly be open to interpretation and we believe that a balance would need to be struck between understanding that medical professionals are entitled to enjoy a private life and any invasion of this has to be proportionate with other concerns. Whilst the focus of this consultation is patient safety and public confidence, we suggest that guidance should be provided to ensure that this would be balanced against the health and wellbeing of medical professionals. There is evidence to suggest 13 that doctors are being put under stress by the nature of the adversarial process that is adopted within the UK during investigation and we believe that panels should be made aware of the consequences for the medial professionals in any decisions that they make. Q9. Drug and alcohol misuse linked top misconduct or criminal offences We partially agree, subject to the provisos articulated in previous questions, and particularly in relation to ensuring contextualisation within a clinical context. Section 2: The role of apology and insight Q10. Do you think panels should; require a doctor to apologise where patients have been harmed? 13 Moberly, T., (2014). GMC is traumatising unwell doctors and may be undermining patient safety, Gerada says. BMJ Careers. Available from: [Accessed 1 November 2014] The Law Society of Scotland 2014 Page 5

7 An apology can be delivered in many ways and is not easily conducive to formula. It relies upon interpretation, emotion and often spontaneity of the parties; both giving and receiving the apology. Such things are difficult to capture and perhaps even more so if this then becomes a requirement. There is also the possibility that the proposals result in duplication of process and remedy. Many NHS boards already have such procedures in place whereby an apology can be made without admission of fault, so would such proposal merely be providing a duplication of processes which already exist- what does it propose to add to these processes? Q11. Deciding whether a doctor has insight We do not agree that guidance to panels on insight, as set out in the consultation, will necessarily be helpful. Words of contrition have to be sincere and this is a matter for the panel s judgment in each case. The mere occurrence of an apology or expression of insight should not necessarily be held to indicate genuine insight. Likewise, there may be a few occasions when the doctor genuinely and sincerely believes that the treatment he gave or his interpretation of some rule was correct, although the panel disagrees. Successful appeals demonstrate that panels are not infallible. Insight should not be synonymous with agreeing with the panel, especially on more technical issues. Panels often have to decide very finely balanced cases. If they decide against a doctor in such cases, it is harsh to go on to impose a more stringent sanction because of the doctor s perceived lack of insight. In addition, we believe that it would be hypocritical for a doctor to express regret for his/her actions merely in the hope of a lighter sanction but we believe that would nevertheless be in their interests if panels require an expression of insight. This may present a conflict for some doctors if they were under investigation. On the one hand an expression of regret might be enough to save their career in the panel s judgment, but, if not, and the doctor later decides to appeal to court, their public display of insight before the panel is an admission of wrong and undermines his credibility and his appeal case. Guidance cannot determine sincerity and caution should be exercised in setting a hard and fast rule to the effect that evidence of regret is always a mitigating factor or indeed the converse with an absence of regret being regarded as an aggravating factor. The Law Society of Scotland 2014 Page 6

8 Q12. Stage of a doctor s medical career can affect insight Subject to our response to Q11. We agree with this proposal. Q13. Assessing the value of testimonials- verification checks We disagree. The case study of Dr. Reading highlights that the testimonials in the example were not fraudulently made; they simply reflected other positive elements of the doctor s character. Verifications checks in this example would have made no difference to what was being investigated. On balance, we believe that the proposed verification checks sound cumbersome and expensive considering that the information proffered might ultimately be of little relevance to the charge against the practitioner. It could nevertheless be helpful to hear a wider view of the practitioner. Perhaps it would be more straightforward and incur less costs that panellists are guided to consider the relevance of testimonials and to bear in mind that they are unverified and untested in cross-examination and assess them accordingly. If the doctor wants to present relevant testimony as to character or wider standing in the community, then there is nothing to prevent them from calling a small number of witnesses who are well placed to comment on this and this may be more compelling than a large amount of vague or irrelevant testimonials. Q14. Do you agree that we should use the factors above to decide whether testimonials are relevant to the panel s decision? We agree. The factors seem relevant and common sense. However, panels could also be advised that this list is illustrative but not exhaustive. Q15. Feedback from responsible officers We agree with the proposals. The Law Society of Scotland 2014 Page 7

9 Section 3: Changes to our guidance on suspension The following response are given and we would be obliged if they are read, bearing in mind our comments in relation to Section 1above on public confidence and patient safety. Q16. The aggravating factors a panel considers when deciding the length of a doctor s suspension from the medical register We agree. These appear to be clear and common sense. We note that one of the criteria is that sending a message that standards must be upheld. However, we do not believe that panels should consider making recommendations relating to wider policy of practice. As we understand, such recommendations falls within the role of the GMC, and the responsibility of the panel is to focus on the case which is before them. Q17. Suspending doctors with health issues As we understand, the process already exists to allow the suspension of doctors who are suffering with health issues. The guidance, however, is to assist panels when choosing between restrictions on registration and full suspension. Q18. How can doctors keep the clinical skills up to date while they are suspended? We disagree. We note that it is proposed that the suspended doctor has no interactions with patients whatsoever. They can however shadow another colleague. Could this not be a question of judgement in each case? We acknowledge that, in some circumstances, the consent of the patient may be required and the duty of patient care remains a primary consideration. Adopting a more flexible approach may be more resource effective, maintain skills and professional responsibilities of the doctor under suspension. Q19. The influence of previous interim orders Please refer to our section 1 responses on public confidence. Additionally, the public is likely to view the interim order as part of the sanction. There can be no purpose in prolonging the suspension of a doctor if the public confidence issue has already been dealt with by interim suspension. The Law Society of Scotland 2014 Page 8

10 Section 4: Giving patients a voice Q20. Do you think there are benefits to doctors and patients meeting where a patient has been seriously harmed? We believe that this would be impossible to make a general rule since any benefits would depend entirely on the facts and circumstances of each individual case and the purpose of the meeting. Section 5-Changes to our powers to give warnings Q21. Do you think that warnings are an effective and proportionate means of dealing with low level concerns which involve a significant depart from Good Medical Practice? We are unsure about the framing of this question. If there was a significant departure from good medical practice would this still remain a low level concern? If it did, then we believe that a more local level approach, to address any shortcomings, should be initially attempted. For example, the responsible officer could take the initial lead and escalated only if there are further concerns. Q22. When do you think we should be able to give warnings? We believe that, subject to our response to question 21 above, warnings should be given to deal with misconduct where fitness to practise is impaired. They should be the first step on the sanctions ladder. Q23. Should continuous warnings merit more serious action? We believe that this would be a matter for each individual set of circumstances. Q24. How long do you think we should publish and disclose warnings in cases where the doctor s fitness to practice is not impaired? We believe that this would be a matter for each individual set of circumstances. The Law Society of Scotland 2014 Page 9

11 For further information and alternative formats, please contact: Brian Simpson Law Reform DD: E: The Law Society of Scotland 26 Drumsheugh Gardens Edinburgh EH3 7YR The Law Society of Scotland 2014 Page 10