Reports > The Fifth Report > CHAPTER TWENTY FIVE - The General Medical Council's New Fitness to Practise Procedures >
The Tests to Be Applied
The Concept of Impairment of Fitness to Practise
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One of the GMC’s main objectives in introducing its new procedures has been to leave behind the compartmentalised approach that had developed under the old procedures for historical reasons. The conduct procedures were the foundation of the GMC’s disciplinary processes. The health procedures and the performance procedures were added in 1980 and 1997, respectively. Although it was possible, in some circumstances, for a doctor to be transferred from one set of procedures to another, a case could not be handled within more than one set of procedures at any one time. Understandably, the GMC wanted to overcome this difficulty. The solution it arrived at was to adopt the concept of ‘impairment of fitness to practise’ as a doctor. This concept, which, as I have said, is embodied in the 1983 Act, forms the foundation of the tests to be applied by decision-makers at both stages of the GMC’s new procedures. |
Definition of the Term
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The advantage of the concept of ‘impairment of fitness to practise’ is that it is capable of embracing any or all of the types of problem that the GMC habitually encounters, i.e. misconduct (including breaches of the criminal law leading to convictions or cautions), deficient professional performance, adverse health and determinations. |
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The disadvantage of the concept is that it is not at all clear what it means. The concept is not defined in the 1983 Act or in the Rules which are to govern the operation of the new procedures. The only relevant legislative provision is at section 35C of the 1983 Act, where it is said that a doctor’s fitness to practise shall be regarded as ‘impaired’ by reason only of misconduct, deficient professional performance, a conviction or caution, adverse physical or mental health or a determination. That section imposes a limitation upon the routes by which a doctor’s fitness to practise might be found to be impaired, but it does not help in understanding what an impairment of fitness to practise is. I have said elsewhere in this Report that the expressions ‘serious professional misconduct’ (SPM) and ‘seriously deficient performance’ (SDP) were difficult to define or even to recognise. I believe that even greater difficulty will be encountered with ‘impairment of fitness to practise’ unless it is clearly defined. |
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The question whether a doctor is fit to practise as a doctor may mean many different things in different contexts. If a doctor is suffering from ill health (for example, severe depression), one might say that s/he is not fit to practise because his/her concentration is so affected that s/he cannot make effective decisions on diagnosis and treatment; s/he presents a risk to patients. If a doctor’s performance is found to be deficient (for example, because s/he has ‘botched’ one or more operations), one might say that s/he is not fit to practise because s/he cannot provide an adequate standard of care to patients and exposes them to risk of harm. If a doctor has been found guilty of offences of indecency, one might say that s/he is not fit to practise because there is a risk that s/he will act indecently towards patients. If a doctor is found guilty of an insurance fraud, one might say that s/he is unfit to practise because s/he is a disgrace to the profession and has brought it into disrepute. Similar considerations might apply to the doctor found guilty of causing death by dangerous driving while drunk. In either of the last two cases, the doctor might be first class so far as his/her clinical practice is concerned. If a doctor has forged prescriptions to obtain controlled drugs for his/her own use, one might say that s/he is unfit to practise because s/he might at any time be under the influence of drugs and unable to make sensible decisions about diagnosis and treatment and/or because s/he is dishonest and cannot be trusted. If a doctor were to give private information to a newspaper about a patient who was a well-known personality, one might say that the doctor was not fit to practise because s/he had breached confidentiality, one of the fundamental tenets of the profession. Another such tenet is the requirement that patients should consent to treatment. A doctor who conducted a research project without obtaining the informed consent of the patients might be said to be unfit to practise. |
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The examples I have given are cases where the conclusion might well be that the doctor is completely unfit to practise. However, the concept of an ‘impairment’ of fitness to practise introduces a difficulty. One dictionary definition of ‘impairment’ is ‘damaged; injured; made less effective; devalued’. Doctors usually use the word in connection with an impairment of function, for example, impaired hearing or impaired mobility. In those contexts it simply means ‘reduction’. Some of the ways by which ‘impairment of fitness to practise’ may be demonstrated under section 35C lend themselves easily to the concept of impairment in the sense of ‘reduced’. For example, if a doctor’s performance is deficient, one might well say that his/her fitness to practise is ‘impaired’. The concept of ‘impairment of fitness to practise’ may also be quite apposite in cases of ill health. But, in most cases of misconduct and convictions, ‘impairment of fitness to practise’ is not a helpful concept. For example, if a doctor has been found guilty of the theft of a pair of shoes from a shop, s/he has been found to be dishonest. Some might say that this has nothing to do with his/her fitness to practise medicine. Others might say that s/he is a disgrace to the profession and is completely unfit to practise. The one thing that you could not sensibly say is that his/her fitness to practise medicine is ‘impaired’. I take another example, this time involving clinical practice. If a doctor has been found to have falsified medical records, some might say that s/he is unfit to practise because s/he cannot be trusted. Some might say that s/he is a disgrace to the profession. Others might take a less serious view and observe that, although this kind of behaviour is to be deprecated, it does not affect the doctor’s fitness to practise. Although different people might take differing views about the seriousness and relevance of the misconduct, I do not think that anyone would think of saying that the doctor’s fitness to practise was ‘impaired’. |
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So, although I can well understand why the GMC has adopted the all-embracing concept of ‘impairment of fitness to practise’, and although I recognise its major advantage, it does have disadvantages. It is not easy to define; it means different things in different circumstances and, in some circumstances, it is almost without meaning. Some concepts are difficult to define but relatively easy to recognise when found. It is often said that elephants fall into this category but I have never understood why; definition cannot be too difficult. However, I fear that an ‘impairment of fitness to practise’ will be not only difficult to define but also not easy to recognise, because (unlike recognising an elephant) recognising ‘impaired fitness to practise’ involves making a value judgement. |
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Even in cases in which the concept of ‘impairment of fitness to practise’ is obviously appropriate, such as cases of ill health or deficient performance, it will not be every slight impairment that gives rise to the need for intervention by the GMC. If there are gradations of impairment, what level will justify the referring of a case through the procedural stages and at what level will action on registration be justified? All those involved in the FTP procedures will know that not every impairment of fitness to practise will justify action by the GMC. To take an extreme example, one might say that if a doctor goes to work suffering from a headache, his/her fitness to practise may be impaired but no one is going to suggest that the GMC should intervene. The GMC can provide guidance for its staff, case examiners and panellists, but how is the public to understand why a decision was taken and how can the courts decide whether a decision was reasonable if the test is as amorphous as ‘impairment of fitness to practise’? There is, in my view, a need for a test which the public understands and by which the courts can judge whether a decision was lawful in the sense of complying with the test. |
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Another potential problem arises with the time when fitness to practise is measured or assessed. The 1983 Act permits a FTP panel to take action on registration if it finds that the doctor’s fitness to practise is impaired. That implies that the impairment must be present at the time of the hearing. So, if a doctor has committed a serious act of misconduct a year ago, does that indicate that his/her fitness to practise is currently impaired? I understand that the GMC has been advised that, although section 35D(2) of the 1983 Act refers to a finding that a doctor’s fitness to practise is impaired, present impairment of fitness to practise can be founded on past matters. That seems sensible. The doctor’s current fitness to practise must be gauged partly by his/her past conduct or performance. It must also be judged by reference to how s/he is likely to behave or perform in the future. Having said that, I think that there will be arguments about the extent to which a past (serious) misdemeanour makes a doctor’s fitness to practise impaired at the present time. It would be most unsatisfactory if a doctor was able, by delaying the hearing of a case, to reduce the risk of a finding that his/her fitness to practise was impaired. |
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I have made these observations about the concept of ‘impairment of fitness to practise’, not because I am going to suggest that the GMC should abandon it but to draw attention to some of the problems of decision-making that will be inherent in the new procedures and which, I think, the GMC must take steps to resolve. |
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I think it will be helpful, in the resolution of the problems that I am about to outline, if I analyse the reasons why a decision-maker might conclude that a doctor is unfit to practise or that his/her fitness to practise is impaired. In the examples I discussed above, four reasons for unfitness recurred. They were (a) that the doctor presented a risk to patients, (b) that the doctor had brought the profession into disrepute, (c) that the doctor had breached one of the fundamental tenets of the profession and (d) that the doctor’s integrity could not be relied upon. Lack of integrity might or might not involve a risk to patients. It might or might not bring the profession into disrepute. It might be regarded as a fundamental tenet of the profession. I think it right to include it as a separate reason why a doctor might be regarded as unfit to practise, because it is relevant even when it arises in a way that is quite unrelated to the doctor’s work as a doctor. |
The Investigation Stage Test
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The new FTP procedures will begin with the receipt of an allegation. Allegations will be sifted by GMC staff and not all will be referred into the investigation stage. I shall consider that sifting process later in this Chapter. If an allegation survives the preliminary sift, it will be referred (except in the case of some convictions) to case examiners. It is convenient at this stage to discuss the test that the case examiners (and, when the case examiners cannot agree, the IC) will apply at the conclusion of the investigation stage in deciding whether to refer a case to a FTP panel. |
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Section 35C(4) of the 1983 Act provides that the IC shall investigate an allegation and decide whether it should be referred to a FTP panel. The section does not specify what test should be applied at that stage. Nor do the November 2004 Rules or any of the drafts which preceded them. This is surprising because it was the lack of a clear straightforward test that gave rise to problems under the old procedures. The problems were lack of clarity about which cases should go through the various filtering processes, and inconsistency of decisions. If the new procedures are to be transparent and are to produce consistent decisions, there should be a clear statutory test for each stage of the process. If there is not, there will be a danger that cases may be filtered out that ought to go forward. If that happens, patients are not adequately protected. |
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The test which the GMC has decided should be applied at the end of the investigation stage is whether there is a realistic prospect of establishing that the doctor’s fitness to practise is impaired to a degree justifying action on registration. Action on registration means erasure, suspension or the imposition of conditions upon the doctor’s right to practise. |
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In the course of the Inquiry hearings, I expressed some concern that the test to be applied by those making decisions at various stages of the FTP procedures made no mention of the protection of patients. It seemed to me that the test focussed exclusively on the sanction to be applied to the doctor and not at all upon the nature and gravity of his/her actions or their effect upon patients. In an apparent attempt to meet those concerns, the GMC added a preamble to the investigation stage test, which appears in various guidance documents: |
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‘The Investigation Committee or case examiners must have in mind the GMC’s duty to act in the public interest which includes the protection of patients and maintaining public confidence in the profession, in considering whether there is a realistic prospect of establishing that a doctor’s fitness to practise is impaired to a degree justifying action on registration.’
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What I actually had in mind was a test that incorporated the protection of patients as an integral part of the test. |
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In any event, the investigation stage test as presently formulated seems to me to give rise to a number of problems. |
A Problem of Principle
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As a matter of principle, in any legal process, if there is to be a preliminary process which seeks to filter out cases which should not go through to final adjudication, the test applied to that process should have the effect of filtering out only those cases which, taken at their highest, could not satisfy the test to be imposed at the final stage. In a disciplinary process, the preliminary process should, as a matter of principle, filter out only those cases that, taken at their highest, cannot satisfy the test for disciplinary action. |
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The test for disciplinary action under the 1983 Act is whether the practitioner’s fitness to practise is impaired. If it is, the FTP panel has jurisdiction to take action on registration. As a matter of principle, therefore, the preliminary screening process should allow through any case in which it is possible (or, if it is preferred, realistically possible) for there to be a finding of impairment to practise. Because ‘impairment of fitness to practise’ is so imprecise a concept, that screening test would set a very low threshold and would result in a lot of very minor cases being referred through to a FTP panel. I think it must have been in order to avoid that result that the GMC set the investigation stage test at a much higher threshold. It will allow through only those cases in which there is a realistic prospect of a finding of impairment sufficient to justify action on registration. |
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I can understand why the GMC would wish to set this higher threshold. It is in no one’s interest to have a lot of trivial cases going through to a FTP panel hearing, at the end of which there is no possibility of action being taken on registration. But, in attempting to do this, the GMC has, in my view, created problems of construction and of circularity of definition which deprive the investigation stage test of clarity and which will result in lack of transparency of decision-making. |
A Problem of Construction
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The test as currently stated poses a problem of construction. Does it mean: |
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- that the decision-maker has to decide whether, in his/her opinion, what is alleged, if proved, shows that the doctor’s fitness to practise is impaired to a degree justifying action on registration and that the evidence available is such that there is a realistic prospect of proving what is alleged; or
- that the decision-maker has to decide whether there is a realistic prospect that a FTP panel will find that what is alleged shows that the doctor’s fitness to practise is impaired to a degree justifying action on registration and also whether the evidence available is such that there is a realistic prospect of proving what is alleged?
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| 25.60 | At the moment, the test does not distinguish between these two possibilities. It is not clear whether the decision-maker is supposed to make a personal judgement about the gravity of the matters alleged or whether the process is one of assessing what the view of a FTP panel might be. That ought to be clarified. However, in my view, neither is satisfactory because both involve the making of a value judgement (either firsthand or secondhand) about the fitness to practise of the doctor if what is alleged about the doctor is proved. A preliminary decision such as the decision to be made at the end of the investigation stage should involve as little value judgement as possible; it should be based, so far as possible, upon an objectively ascertainable threshold. | The Problem of Circularity | | 25.61 | A further problem with the investigation stage test as currently drafted is that it is circular. The case examiner or IC must make a judgement about whether the matters alleged appear to show an impairment of fitness to practise such as would justify action on registration. So, for example, in a case involving an allegation of misconduct, the test involves consideration of whether what the doctor appears to have done is serious enough to justify action on registration. That question immediately prompts a second question, namely: how serious does what s/he has done have to be before it is serious enough to justify action on registration? And the only answer available to that second question is that it has to be serious enough to justify action on registration. We have come full circle. There is no benchmark, no objective standard. The answer to ‘how serious does it have to be?’ involves a purely subjective judgement by the decision-maker. I accept, of course, that some element of discretionary judgement will always be required in decisions of this kind; decision-makers often have to decide upon which side of a threshold a particular case falls. The problem here is that there are no thresholds. This means that decisions at the investigation stage can never be adequately tested. The decision-making process can never be transparent. | What Should Be Done? | | 25.62 | I suggest that the GMC should think again about the investigation stage test. Because I recognise that it is easy to criticise the work of others and less easy to suggest better ways of doing things, I have tried to devise a test that will be clear and will depend, not upon an open-ended value judgement (whether at firsthand or secondhand), but upon some more objective criteria. | | 25.63 | The test I propose has two stages. The object of the first stage of the test will be for the decision-maker to decide whether the allegation, if proved, might show that the doctor’s fitness to practise is impaired. At the second stage, s/he will have to consider the adequacy of the evidence. At the first stage, I have related ‘impairment of fitness to practise’ to the underlying reasons why the doctor’s fitness to practise might be impaired, which I identified earlier. These reasons are that s/he is a risk to patients, that s/he has brought the profession into disrepute, that s/he has breached one of the fundamental tenets of the profession or that his/her integrity cannot be relied upon. Those concepts are far easier to recognise than ‘impairment of fitness to practise’. So, the two stages are: | | | 1. Is there one or more than one allegation of misconduct, deficient professional performance or adverse health and/or one or more than one report of a conviction, caution or determination which, if proved or admitted, might show that the doctor: |
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- has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
- has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
- has in the past committed a breach (other than one which is trivial) of one of the fundamental tenets of the medical profession and/or is liable to do so in the future; and/or
- has in the past acted dishonestly and/or is liable to act dishonestly in the future.
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| | If so: | | | 2. Is the available evidence such that there is a realistic prospect of proving the allegation? | | 25.64 | I would suggest that a doctor should be regarded as ‘liable to’ act in a certain way if a reasonable and well-informed person would consider, in the light of what is known about the allegation and about the doctor’s past and present circumstances, that there is a real risk that s/he might act in that way. The evidence of a single past event might be serious enough, standing alone, to satisfy the investigation stage test. For example, evidence that a doctor had harmed a patient, as Shipman was believed to have harmed Mrs Renate Overton, by giving her an inappropriate dose of morphine (see Chapter 10), would satisfy the test. Evidence of a less serious error, for example, the kind of prescribing error that Shipman made in the case of Mr W (see Chapter 6), might not be sufficient standing alone, but would be sufficient if coupled with other evidence that suggested that the doctor was liable to make careless mistakes. Evidence of poor communication skills, contained in a performance assessment report, might well pass the test, even if there was no significant past incident in which harm had been caused; it might pass on the basis that the doctor was liable to cause unwarranted harm in the future. I would suggest that ‘unwarranted risk of harm’ should be defined as a risk of harm over and above that which would be expected to arise from the advice or treatment had it been given or administered with reasonable skill and care. Insofar as there is no agreement on the fundamental tenets of the medical profession (some of which appear in ‘Duties of a Doctor’), a list could be developed and agreed. | | 25.65 | In my view, the application of that two-stage test would give case examiners and the IC something more objective to focus upon than ‘impairment of fitness to practise’. It would avoid those people having to ‘second guess’ the view that the FTP might take about the need to take action on registration and it should also avoid trivial cases being sent through to the FTP panel. Finally, I think also that it would satisfy the public’s reasonable expectation about the kind of case that ought to go through to a FTP panel. If correctly applied, it should ensure that all those cases that ought to proceed (for reasons of patient protection) do in fact proceed to a FTP panel. | The Adjudication Stage Test | | 25.66 | At the present time, the test to be applied by the FTP panel is simply framed in the words of the statute. The statutory test is whether or not the doctor’s fitness to practise is impaired. It is not, as the GMC’s Guidance to Panellists suggests, whether or not the doctor’s fitness to practise is impaired to a degree justifying action on registration. I suspect that FTP panels will have great difficulty in applying the statutory test in a consistent way. The test requires a value judgement that is not underpinned by any objective criteria. Nowadays, where a statute gives a decision-maker a discretion, it usually provides a list of the kind of things that should be taken into account. | | 25.67 | In devising an adjudication stage test (to be applied by FTP panels under Rule 17(2)(k)), I have tried to focus the panel’s mind on its true purpose. I suggest that: | | | Do our findings of fact in respect of the doctor’s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
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- has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
- has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
- has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
- has in the past acted dishonestly and/or is liable to act dishonestly in the future.
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| 25.68 | If the FTP panel finds that the doctor’s fitness to practise is impaired, it should go on to consider sanction under Rule 17(2)(n). It is at this stage (and not before) that the statutory scheme requires the FTP panel to consider whether the doctor’s fitness to practise is impaired to a degree justifying action on registration. At this stage, I suggest that the panel asks itself: | | | Would a reasonable and well-informed member of the public conclude that the doctor’s fitness to practise is impaired to the extent that, in the interests of patient protection and/or of the maintenance of public confidence and of standards in the medical profession, the doctor’s registration should be erased or suspended or have conditions imposed upon it? | | | In a case which depends wholly or mainly on findings in relation to the doctor’s ill health, erasure will not be available. I have incorporated into the second limb of the test the view that would be taken by an informed member of the public because I am firmly of the view that the standards, criteria and thresholds that are to be applied by FTP panels must be acceptable to society as a whole. That they have not been in the past has been one of the major causes for public criticism and lack of confidence in the GMC. | | 25.69 | I hope that the GMC will give serious consideration to these proposed tests. When a final decision has been taken, the tests for both the investigation and the adjudication stages should be enshrined in legislation. There are several reasons why this should be done. The GMC should be able to say that the tests to be applied have been sanctioned by Parliament. The public should know that the GMC is applying the law of the land and not just a formula of its own making. It should not be possible for the GMC to change the tests to be applied without proper consultation and without the approval of Parliament. Furthermore, it is important that there should be statutory tests by reference to which the courts can examine any decision, whether on judicial review in respect of the investigation stage decision or on appeal from the decision of a FTP panel. | Section 35C of the Medical Act 1983 and the Ways of Proving Impairment | | 25.70 | It will be seen that, in drafting the tests that I have proposed for the investigation and adjudication stages, I have adopted the five categories of allegation by means of which, under section 35C of the 1983 Act, an impairment of fitness to practise may be demonstrated. However, in my view, there is a lacuna in these five categories. There is a category of allegation which does not fall easily within the range of ‘deficient professional performance’ or of ‘misconduct’. Misconduct, as I explained in Chapter 17, generally connotes behaviour which has been undertaken deliberately or recklessly. In order to give the GMC jurisdiction to deal with cases of serious negligence which put patients at risk, the bounds of SPM were extended to embrace negligent acts or omissions, usually arising in a clinical context, provided that they were sufficiently serious. However, to describe some of these cases as ‘misconduct’ required some ‘stretching’ of the use of the language. A typical example might be that of a doctor who gave a gross overdose of a dangerous drug. He or she might have done so because s/he was very careless about the size of ampoule s/he picked up or because s/he had not bothered to find out the correct dosage. Another example might be operating on the wrong arm, leg or kidney. Such cases of serious negligence might equally well - or even more appropriately - be described as cases of ‘deficient clinical practice’. With the advent of the performance procedures came the concept of SDP. This was usually characterised by a pattern of unacceptable clinical practice, although it could relate to organisational or behavioural problems. Such a pattern might result from ignorance, from a failure to keep up to date, from laziness, from poor health or from a concatenation of social or professional difficulties. So, there were then two concepts, SPM and SDP, neither of which comfortably accommodated a case of serious negligence such as that I described above. Such a case could not sensibly be termed SPM; nor, if it was a ‘one-off’ incident, could it possibly amount to SDP. Under the old procedures, there was a real danger that such cases would fall through the net and would be closed at a preliminary stage. | | 25.71 | Unfortunately, section 35C has perpetuated this problem. There is still no place for the isolated or nearly isolated serious error, committed not deliberately or recklessly, but negligently. Nor is there a place for a case of two or three ‘lower level’ incidents which do not demonstrate the ‘pattern’ necessary to constitute deficient performance but which may nonetheless put patients at risk. It seems to me to be obvious that such cases ought to enter the FTP procedures because they could be cases of impairment of fitness to practise. I suggest that, if the legislation is to be amended, a further category should be added to the means by which impairment may be proved, namely ‘deficient clinical practice’, which could relate to one or more than one incident. The aim would be to ensure that the ‘routes’ to impairment of fitness to practise embrace all the circumstances which might put patients at risk. | | 25.72 | So far in this Chapter, I have discussed the broad issues relating to the new procedures. I have made certain suggestions for change. I shall now move on to consider, in some detail, the provisions under which the new procedures will operate in the immediatefuture. |
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The Separation of Functions within the Fitness to Practise Procedures
