Fit to practise?

Proposals in outline

To turn the tide of cases being referred for a hearing, the GMC proposes that once a complaint has been investigated it will engage with the doctor to discuss what it considers to be the appropriate sanction and will encourage the doctor to accept it. This would happen in almost all cases, and it would be open to the GMC to offer a doctor the full range of sanctions currently available (from undertakings, warnings, conditions, and suspension through to erasure from the register). It is proposed that all of this would be achieved through discussion and agreement between the parties, possibly in the form of a round table meeting chaired by a facilitator.

The consultation raises interesting questions about how this process would work in practice—for instance, whether a doctor should be able to disclose information to the GMC at the discussion stage “without prejudice.” The GMC concludes that this would be acceptable but adds the caveat that it would still be able to investigate such information later if discussions about agreeing a sanction subsequently broke down. One might wonder how genuine without-prejudice disclosure can be in a protective jurisdiction where the GMC has a statutory duty to investigate all concerns brought to its attention. Furthermore, historically those representing doctors have advised caution in relation to early disclosure of a doctor’s position; without-prejudice disclosure will be a considerable cultural change, which will require a leap of faith before confidence in the value of an open approach is established.

The consultation document asks whether certain cases should be referred for a public hearing on the grounds of public interest, even where the doctor is willing to accept the GMC’s proposed sanction. The GMC concludes that there are no cases that need to be referred to a hearing on public interest grounds alone. It will be interesting to see whether patient interest groups take the same view.

The consultation invites comments on how to maintain “transparency of decision-making” if most cases are not referred for a public hearing and discusses appropriate wording to include on the medical register to inform the public as to how a case has been disposed. For instance, where a doctor agrees to be erased from the register, the entry against that doctor’s name might read “erased by mutual agreement.” Of course, the issue is—as the consultation document points out—one of maintaining public confidence in the profession and also the need to “guard against the perception that agreements which may compromise patient safety are being reached behind closed doors.”

It is not clear from the consultation document what the GMC intends to do if a doctor decides that he or she does not wish to engage with the consensual disposal process and would prefer the case to be heard before a panel of lay people and medical peers (some of whom may be from their own specialty), in much the same way that somebody charged with a criminal offence “triable either way” may prefer to elect to have their trial heard in the Crown Court before a judge and jury rather than before magistrates. Will there be penalties for non-compliance, and, if so, how will these be imposed? These are only some of the issues that are likely to inspire debate as the proposals take shape.

Need for change

A move towards disposing of cases by agreement, or “consensual disposal,” has been on the GMC’s policy agenda for some time. It has long been possible for the GMC to agree with doctors, where there are concerns about health or performance, to dispose of their cases by means of undertakings, avoiding the need for a hearing. Similarly, there are cases where a doctor opts to take voluntary erasure from the register rather than have his or her case determined at a public hearing. However, the consultation document says that undertakings or voluntary erasure are currently considered as a means of possible disposal in only about 2% of cases each year, so the GMC will clearly have some way to go if it wishes to reverse this trend.

The theory behind the idea of consensual disposal is “proportionality of punishment to regulatory breach.” In simple terms, this means taking the minimum action necessary to ensure protection of the public. The pragmatic benefits of this approach are obvious. For the doctor, the benefit is early resolution of a complaint without the need to endure a lengthy public hearing. For the GMC, the benefit is value for money. Although the GMC is at pains to make it clear that cost will never be a factor in determining how a case should be disposed of, it is clearly concerned by the ever escalating expense of its fitness to practise function, which has risen from just under £15m in 2000 to just under £44m in 2010. A desire to save money must therefore surely be part of the impetus for change. With the assumption that these changes will not impede the fair disposal of a case, it would be hard to criticise the GMC for this, not least when most of its funding comes from registration fees.

And why change now?

The GMC says that it is aware of the often made criticism that its current processes are protracted, overly punitive, and unnecessarily stressful for all parties concerned. This and the ever escalating costs are persuasive factors in support of the argument for change. Another reason is the shift in the approach that the courts have taken to medical regulation in recent years, particularly in relation to whether a doctor’s fitness to practise is “impaired.” The focus must now be on any deficiency in the doctor’s fitness to practise at the time of the hearing and going forward—rather than looking back. Given the time it can sometimes take for a case to be listed for a hearing, a doctor has often remedied any deficiencies in his or her practice by the time the allegations are read, leading to an increasing number of hearings being concluded with a finding of no impairment. These developments in the law have also surely contributed to the GMC’s recognition of the need for change.

A step in the right direction?

The GMC’s proposals have appealing aspects. It is now well established in law that the purpose of regulatory sanctions is not to punish the registrant but to protect the public and assist in rehabilitation of his or her practice. The general shift towards a presumption that, where possible, cases should be disposed of consensually is therefore to be welcomed. Certainly other jurisdictions deal with medical regulation in a more administrative fashion, seemingly to no ill effect.

The consultation document proposes that once agreement has been reached the doctor will sign an “agreed statement of facts.” There are and will be many cases where the facts can be agreed, but equally there will be many more where the facts are in hot dispute. Given what is at stake in terms of a doctor’s reputation and future career prospects, it will take a careful balancing exercise to achieve a negotiated outcome that all parties are happy to buy into.

The proposals in relation to without-prejudice disclosure will also need thought. Without-prejudice negotiations work in the civil arena where the considerations relate to costs. Very different considerations apply when you are dealing with protection of patients, and the GMC will have to think carefully about how this particular aspect of its proposals will work in practice. It may be harder than it anticipates to get the profession on board in relation to this change, yet unless it does so the proposals will surely fail as doctors continue to elect to have their case determined at a hearing.

Finally, the GMC says that these proposals do not amount to plea bargaining and that it will not “negotiate a lesser sanction to encourage a doctor to accept a settlement.” However, it is hard to see how an element of bargaining cannot enter into the process, especially given that the present proposal is that doctors will be invited to a facilitated meeting. The real issue is whether the negotiations or discussions lead to a result that protects the public while also being fair to the doctor.