Reports > The Fifth Report > CHAPTER SEVEN - Complaints and Discipline after 1996 >
The 1996 Disciplinary Procedures
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7.36 |
As I have explained, whereas, under the pre-1996 procedures, complaints that amounted to a breach of the GP’s terms of service were directly linked to disciplinary procedures before a medical service committee, from April 1996 this was no longer the case. The National Health Service (Service Committees and Tribunal) Amendment Regulations 1996 came into force at the same time as the 1996 complaints procedures. HAs (and later PCTs) could arrange disciplinary proceedings in any matter (apparently amounting to a breach of the GP’s terms of service) that, in their opinion, was serious enough to warrant disciplinary action. From 1996, decisions on whether to initiate proceedings were taken by a committee of the HA or PCT, usually known as the reference committee. If it became necessary to hold a disciplinary hearing, a medical disciplinary committee would be provided by an adjacent HA or PCT so as to provide a degree of independence from the HA or PCT which was, in effect, the complainant or prosecutor. A rather cumbersome adversarial procedure would be followed. However, in practice, such proceedings became very rare. Miss Horsfall told the Inquiry that, over a period of seven years, only one doctor had been referred to a disciplinary panel in Tameside, and he and one other doctor had been reported directly to the General Medical Council (GMC). Nationally, there was a dramatic reduction in the number of disciplinary proceedings held. Whereas, in the latter years of the old regime, annually there had been between 325 and 552 GPs found in breach of their terms of service, between 1997 and 2003 the corresponding figures were between three and twelve. This reduction was in no way foreseen. Mr David Laverick, who was Chief Executive of the Family Health Services Appeal Authority (FHSAA) at the time of the transition, told the Inquiry that it had been anticipated that the numbers would remain the same as before, and that the FHSAA had planned for about 400 findings annually. The 2002/2003 Annual Report of the Council on Tribunals described many substantive and procedural shortcomings that had been revealed by their observations of the working of medical disciplinary committees. Several of these originated from the fact that so few hearings were in fact being held. Specifically, inconsistencies in the rules were exploited by medical defence organisations, and deliberation and decision-making were often laboured and unstructured. |
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7.37 |
There seem to be at least two reasons for the marked reduction in numbers of hearings. First, it was not possible for a HA or PCT to take disciplinary proceedings in respect of any matter arising from a patient complaint unless and until the complaints procedures had been completed. If a complaint went to independent review or to the Health Service Ombudsman, the process could take a long time. When it was completed, the HA or PCT could not use the evidence already given to the IRP but had to ask the complainant and his/her witnesses, if any, to give evidence again. Not all were willing to co-operate so long after the event. This procedure was necessary out of fairness to the doctor who, previously, might not even have heard the complainant’s evidence, let alone had the opportunity to challenge it directly. |
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7.38 |
The second, and perhaps more important, reason for the decline in disciplinary proceedings was that there had been a change of culture. There is now a general view that it is preferable that a doctor whose conduct or performance has been in some way unacceptable should be helped to improve rather than be subjected to punishment. In Chapter 5, I described the ways in which HAs (and more recently PCTs) developed committees or groups whose function was to ensure that any concern about a practitioner, however it was brought to the notice of the HA, was adequately addressed. To a very large extent, the activities of such committees or groups had replaced disciplinary proceedings at local level even before the introduction of the list management procedures that PCTs can now invoke to deal with more serious or intractable problems with GPs. In Chapter 5, I also described the list management powers that PCTs have had since April 2002. These enable (and in some limited circumstances require) a PCT to suspend or remove a doctor from the PCT’s list or to impose conditions on the doctor’s continuing inclusion. |
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7.39 |
It was an inevitable consequence of the sharp reduction in disciplinary proceedings that very few appeals were made to the FHSAA and, later, the FHSAA (Special Health Authority) and, in consequence of that reduction, very few doctors have been reported by that body to the GMC. After 1996, the usual mechanism for the reporting of a doctor to the GMC was either by means of a direct complaint by a patient or representative or by the HA or PCT itself if it took the view that remedial measures it had itself applied had not been, and were not likely to be, successful. Among those responsible for the administration of disciplinary measures, their demise does not appear to have given rise to significant dissatisfaction. However, it does appear that some patients or their representatives who pursued a complaint against a doctor remained dissatisfied even though their complaints may have been upheld, because their perception was that the doctor had not been held accountable. To some extent, this problem arose because complainants were not entitled to be informed (and, in practice, were not informed) about any remedial measures that the doctor might have been required to undergo as the result of an IRP’s report. However, it may be that there is a fundamental problem with the 1996 complaints procedures in that they do not provide any clear focus or objective. Before 1996, the objective was at least clear, unsatisfactory though it may have been: it was to punish the doctor who breached his/her terms of service. Since 1996, the objectives have been to ‘satisfy the complainant’ and to learn from mistakes. So far as the complainant is concerned, there is no redress other than perhaps an apology. I shall return to the issue of redress later in this Chapter. |
The Power to Suspend a General Practitioner from NHS Practice
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7.40 |
One unsatisfactory aspect of the 1996 disciplinary procedures was brought into sharp focus in 1998, when the WPHA was advised by the Greater Manchester Police (GMP) that Shipman was under investigation for the murder of a patient, Mrs Kathleen Grundy, that a number of other sudden deaths gave rise to suspicion and that Shipman was thought to be a risk to his patients. Shipman had not at that stage been arrested or charged with any offence. He was practising, as usual, from 21 Market Street, Hyde. On 14th August 1998, Detective Superintendent Bernard Postles (later Detective Chief Superintendent), the officer in charge of the investigation into Shipman, requested that the WPHA take steps to suspend Shipman from practice. He also contacted the GMC but was informed that that body had no power to suspend a doctor during the investigation of a criminal offence. |
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7.41 |
The WPHA itself did not have the power to suspend Shipman either. The procedure under the National Health Service (Service Committees and Tribunals) Regulations 1992, as amended, was for the WPHA to apply to the NHS Tribunal, which did have the power to impose interim suspension, pending the hearing of an application by the WPHA for removal of Shipman’s name from their list. Liaison between the WPHA’s solicitor and the Clerk to the NHS Tribunal revealed that the NHS Tribunal would require a written application supported by evidence from the police, including witness statements. The police were unwilling to reveal such information at that time, as disclosure to Shipman might prejudice their investigations. Further communications between the WPHA and the Clerk to the NHS Tribunal resulted in a formal application being made on 21st August, supported by a summary of the position and letters in which the GMP explained the reasons for its ‘mounting concerns’ about the safety of Shipman’s patients. The procedure required a hearing before the Tribunal. Shipman had to be given 14 days’ notice of a hearing; in fact the hearing was fixed for 29th September. |
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The police decided to act and arrested Shipman on 7th September. He was charged with murder and forgery and was remanded in custody. His patients were now safe, although the GMP feared that an application for bail might succeed. In any event, the WPHA wished to take over the management of Shipman’s practice, as the consortium to which Shipman belonged was having difficulty in finding locum doctors to provide services to patients. Both the GMP and the WPHA wished to pursue the application to the NHS Tribunal. Further evidence was lodged, on affidavit. |
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7.43 |
A hearing took place before the Tribunal in London on 29th September. An application to adjourn the proceedings, made on Shipman’s behalf, was refused. The Tribunal’s decision was reserved and was delivered, in writing, on 15th October. The Tribunal had decided to suspend Shipman from the list of practitioners providing general medical services to the WPHA. However, the decision did not take legal effect until the expiry of a further 14 days, during which time Shipman was entitled to lodge an appeal. In fact, he did not do so and the order took effect from 29th October 1998. Both the WPHA and the GMP were deeply dissatisfied that it had taken ten weeks to obtain an effective order. |
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The difficulties experienced by the WPHA and the GMP in this case led directly to a decision by the GMC to seek extended powers of interim suspension, which it now has. Also, the Health and Social Care Act 2001 abolished the NHS Tribunal and granted to HAs (later PCTs) the power to suspend and remove a GP from their lists. A PCT can take action only in respect of its own list. If appropriate, a PCT can refer a case to the FHSAA (a new body created in December 2001), which can impose national disqualification. |
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Reactions to the 1996 Complaints Procedures
