Rules shake-up plans to be discussed by GMC
Times October 30, 2006
Rules shake-up makes it easier to strike off dangerous doctors
By Frances Gibb, Legal Editor and Nigel Hawkes, Health Editor
INCOMPETENT and under-performing doctors are to face a strict new disciplinary system to make the profession more accountable to the public, The Times has learnt.
At present, doctors under investigation for “fitness to practise” are judged by the standard of proof applied in criminal courts: whether the allegations are proved “beyond reasonable doubt”.
But under plans to go before the profession’s regulatory body, the General Medical Council (GMC), tomorrow, the standard of proof will be changed to that used in the civil courts: “on a balance of probabilities”.
The move, which has been strongly opposed by doctors’ representatives, appeared to be in response to a report in July by Sir Liam Donaldson, the Chief Medical Officer.
The GMC insists that it will not mean more doctors being struck off. It is intended that more serious allegations will have to be met by a higher standard of proof and that doctors allegedly guilty of lesser misdemeanours or failings could be given sanctions, including requirements to undergo treatment or be supervised.
Under parallel plans for more use of conciliation procedures, more doctors may be dealt with away from public disciplinary hearings if the charge is relatively minor.
James Johnson, chairman of the British Medical Association council, has given warning that such changes would “open the door to miscarriages of justice”.
Lord Walton of Detchant, a former president of the GMC, said: “Erasure from the Medical Register at one fell swoop removes a doctor’s livelihood. With this revised standard of proof, I cannot but express concern that injustices will occur.”
Paul Philip, director of standards and fitness to practise at the GMC, said: “This will not mean doctors being erased from the register on a lower standard of proof. The rigour of the criminal standard of proof, or a standard close to it, is appropriate when contemplating erasure. On the other hand, the consequences of sanctions other than erasure are less profound, and the standard of proof could be applied more flexibly.”
A group of 738 doctors wrote to The Times protesting about the proposals, and a campaign by the GPs’ newspaper Pulse has been signed by more than 350.
Any changes will need the approval of Parliament and the Lords, where there is strong opposition.
Last year 273 doctors came before “fitness to practise” panels. Of these, 36 were struck off, 89 were suspended and 80 had conditions or restrictions placed on them. Some of the others were given reprimands or warnings.
Mr Philip, a lawyer, said that the move was part of wider measures to ensure public protection.
In recent years the GMC has had to deal with cases including Harold Shipman, jailed for 15 murders, the bungling gynaecologist Rodney Ledward, and the GP Clifford Ayling, convicted of 13 counts of indecent assault on female patients.
After criticisms by Dame Janet Smith in her report after the Shipman inquiry, changes were made to meet the charge that the GMC was a trade union for the medical profession. GMC council members are no longer on the panels that judge doctors. Members of the public make up 40 per cent of the panel.
GMC PROPOSALS
Changes proposed include:
Separating evidence-gathering and adjudication in fitness-to- practise cases, so the GMC collects the evidence and a tribunal chaired by a QC makes the final decision
Altering the standard of proof required from the criminal model of “beyond a reasonable doubt” to the civil model of “on the balance of probabilities”
Appointing local GMC affiliates to monitor problems and identify poor practice early
Surrendering GMC’s supervision of undergraduate medical curriculum
Making GMC accountable to Parliament
GMC members to be appointed by the NHS Appointments Commission, not elected by doctors
The Times October 30, 2006 - Editorial Comment
Health check
Doctors should not fear efforts to police their performance
When a doctor is convicted of murdering 215 of his patients, the case is bound to reverberate through his profession. Sure enough, the appalling Harold Shipman saga triggered a series of reports and investigations, one of whose results is a new effort by the General Medical Council (GMC) to make it easier to discipline dangerous or underperforming doctors.
Yet there is a case more recent and relevant to this effort than Shipman’s. It is that of Dr Manfred Heinrich, trained in Germany but barred this month from practising in Britain after a hearing found his English inadequate despite several years’ work as a locum in Scotland, and his experience and knowledge akin to what might be expected of a fourth-year medical student.
Parallels are often drawn between the medical and legal professions, but the two are fundamentally distinct in this respect: medical errors can cost lives. Patients have a right to be treated by competent doctors, and while the vast majority are both competent and committed — wherever they were trained and whatever their native tongue — the internationalisation of the profession carries a measure of risk. So do the reforms constantly being demanded of the NHS, some of which involve incentives that can induce an unscrupulous minority to put profit before care. If the GMC can mitigate these risks by lowering the burden of proof in its disciplinary hearings from the standard required in a criminal trial to the “balance of probabilities” sought in civil courts, it will have struck a blow for patients and enhanced its own status in the process.
The initiative is fiercely opposed by many doctors, more than 700 of whom wrote to The Times this month. They argued, in particular, that the “unique” patient-doctor relationship would suffer if peer feedback is used to help to assess complaints brought against practitioners. Meanwhile, the broader sense of vulnerability of doctors to the legal system will hardly have been soothed by a ruling in the Court of Appeal in the Sir Roy Meadows case that medical experts are not immune from professional misconduct charges for evidence they may give in court.
Some of the profession’s concerns have merit. The best way to catch the next Shipman is not to cast a shroud of suspicion over all doctors facing complaints. It is, as Dame Janet Smith recommended in vain in her report on the Shipman case, to refer all deaths to coroners and to ensure their independence from local authorities and police. There is also a risk of some GPs refusing to engage fully with their patients and retreating into a defensive, “box-ticking” mode of practice for fear of frivolous or malicious complaints.
But in truth the proposals being put to the GMC are not draconian. Cases in which a doctor may be struck off will still require proof of misconduct close to the criminal trial standard of “beyond a reasonable doubt”. Fewer disciplinary proceedings will actually lead to the humiliation of public hearings, and more will lead to moderate sanctions — such as mandatory retraining, supervision or abstention from certain procedures — that acknowledge the unique stresses of practising medicine and need not mean the end of a career.
The GMC will discuss these proposals tomorrow. Physicians should heal themselves by voting in favour of reform.
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