The Shipman Inquiry - Fifth Report - Proposals for Change Affecting the General Medical Council

The Availability of Information about Doctors

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Conclusions

Proposals for Change Affecting the General Medical Council

The Fitness to Practise Procedures
27.200	In Chapter 25, I explained why it had been necessary for the Inquiry to examine the GMC�s proposals for its new FTP procedures in some detail. I said that my examination of the old FTP procedures had identified a number of shortcomings and that it was important to find out whether those shortcomings would be remedied under the new procedures. In the course of Chapter 25, I reported my view that some of the defects of the old procedures had been remedied but that, in other important respects, the old shortcomings were to be perpetuated. I also found that some changes had been retrograde. I have already made a number of suggestions as to how the new FTP procedures might be improved. I have made these detailed recommendations because the Inquiry�s Terms of Reference require me to make such recommendations as I consider necessary for the protection of patients in future and because I do not intend to recommend that the GMC should be deprived of its FTP function. In this section of this Chapter, I shall draw together those recommendations. In some cases, I shall only refer back to the passage at which the original recommendation was made.
The General Medical Council�s Role in the Wider Regulatory Framework
27.201	In Chapter 18, I referred to the ambiguity in the GMC�s perception of its role in the wider regulatory framework. In the past, it encouraged the public to see it as a repository for all complaints about doctors but did not have the resources to investigate all the complaints it received. The result was that it sought to divest itself of many complaints that had not already been investigated by other bodies, often without even considering whether they raised a question of SPM. In effect, it was behaving as if it were a secondary referral body rather than an initial recipient of complaints. It does appear that this problem may have been resolved. First, the GMC has taken on a substantial number of investigators and should be in a position to deal with all allegations that it receives which fall within its jurisdiction. Second, as I have said at paragraphs 25.118-25.119, it appears that the GMC will no longer close cases, and advise complainants that they should pursue their complaints through local complaints procedures, before it has decided whether or not the allegation falls within its jurisdiction. It will give advice to that effect only after it has decided that the case does not fall within its jurisdiction. If that is indeed the case, it will be satisfactory.
27.202	It is inevitable that there will be complaints that are directed to the wrong destination. No doubt the GMC will continue to receive some that do not fall within its jurisdiction and other organisations will receive complaints and concerns which ought to be directed to the GMC. As I have said, the GMC has suggested that there should be a �single portal� to assist persons who wish to make a complaint or raise a concern in directing that complaint or concern to the correct complaints handling body. This seems to be a good idea and, as I have already said, the Healthcare Commission is considering various options for the provision of such a service. However, the number of misdirected complaints would, I think, be reduced if the GMC were to ensure that its publications contained accurate and readily understandable guidance as to the types of case that do and do not fall within its remit.
27.203	The GMC has said that, where a case is referred to it by a person acting on behalf of a public body (usually an employer or a PCO), it may suggest that that body investigates the allegation before the GMC takes over the case. This may be done even though the allegation does, or might, fall within the GMC�s jurisdiction. However, I presume that this procedure would not be followed if the case required urgent interim action by the GMC. This procedure is acceptable provided that the other body, the employer or PCO, is content to investigate it and has the expertise and resources to do so and provided also that the GMC does not lose sight of the case. The GMC has said that it recognises the importance of bringing such cases back for further consideration after they have been investigated. In fact, the GMC should be able to use its influence with the PCT or NHS body to ensure that the investigation progresses satisfactorily. As these procedures will be new to GMC staff, I recommend that their operation should be audited, especially in the early days. As I understand it, it is not the GMC�s intention that this procedure should be applied to allegations made by private individuals. That would not be acceptable in my view.
Separation of Functions
27.204	In Chapter 25, I reported that, despite the GMC having recognised the need for separation of the investigation and adjudication functions, both the investigation and the adjudication stages of the new FTP procedures are still to be under the control of the GMC.
27.205	At the investigation stage, there is a casework function, which will be undertaken mainly by members of the GMC staff and case examiners. The Investigation Committee (IC) will also undertake some casework in cases where the case examiners disagree and in cases where there is an oral hearing to decide whether to issue a warning. The IC�s casework will be carried out by panels. At the moment, the Rules allow GMC members (as well as associates) to sit on IC panels. However, the GMC has told the Inquiry that the �operational intention� is that they should not. If it is indeed intended that membership of IC panels should be limited to non-members of the GMC, the Rules should be amended to reflect that. There are also governance functions within the investigation stage. These include the setting of standards, criteria and thresholds, general supervision of the investigation stage and audit of the casework done by members of staff and case examiners and of decisions taken by IC panels. It was originally intended that the IC would undertake all these governance functions, in addition to its casework function. Recently, however, it has been recognised by some within the GMC that this would not be appropriate. In the immediate future, the governance functions relating to the investigation stage will be undertaken by the Fitness to Practise Committee. As I explained in Chapter 25, there is uncertainty about the future role of the IC. Whatever the eventual outcome, in my view, there must be complete separation of the casework function and governance function. It is inappropriate for one committee to have complete control of all aspects of the investigation stage.
27.206	The adjudication stage presents much greater problems of separation of function. The GMC initially considered hiving off the adjudication stage altogether but decided against it, preferring to keep both adjudication and investigation within the GMC and intending to introduce a measure of separation by using only non-members of the GMC for its adjudication stage casework. However, it appears to me that there is no real separation at all. As I have observed, under the present proposals, the GMC will select the FTP panellists (both for inclusion on the list of panellists and for inclusion on a panel in an individual case), train them, provide them with guidance, audit their decisions, appraise their work, and call them in for discussions about decisions with which it disagrees; it will also have the power to dismiss them if dissatisfied. The GMC is also proposing that, in future, it will or might indicate to a doctor, in advance of a hearing, the outcome that the GMC will seek in his/her case. If done, that might well have the effect of restricting FTP panels to the sanction sought by the GMC. Even without such a restricting indication, panellists will have very little independence. The GMC will also select the legal assessors and any specialist advisers or assessors who may be required. In 2000, the GMC rightly recognised that, under the Human Rights Act 1998, doctors were entitled to a fair and public hearing by an independent and impartial tribunal. I think that, in the future, it might well be alleged against the GMC that its FTP panels are not independent of the �prosecuting� authority. Whether that allegation were to come from a dissatisfied doctor or a dissatisfied complainant does not really matter. The process would be much more satisfactory from the points of view of both patient protection and fairness to doctors if separation were to be achieved.
27.207	I realise that a great deal of effort has gone into the selection and training of the FTP panellists but I regret to say that I do not think the present arrangements are satisfactory. I must recommend that some mechanism be found for the appointment, training and management of both lay and medically qualified FTP panellists by a body that is independent of the GMC. That body would also have to provide administrative support for hearings. I recommend that consideration should be given to the idea of appointing panellists who could sit full-time or nearly full-time on disciplinary or FTP panels for all healthcare regulators. They would acquire far greater experience than GMC panellists currently can. If this idea were adopted, it would be possible to have full-time legally qualified chairmen. The GMC should also divest itself of the right to appoint legal assessors; in any event, if legally qualified chairmen were to be used, legal assessors would not be required. Legally qualified chairmen could also undertake case management work. In any event, it would not be appropriate for the GMC to appoint case managers.
27.208	Precisely how this separation should be achieved, I cannot say. I have heard no evidence about the way in which other regulatory bodies arrange matters. It occurs to me that the other healthcare regulators may also have a need for independent panellists. It may be possible to set up a joint facility. I had thought that the Council for the Regulation of Healthcare Professionals, now known as the Council for Healthcare Regulatory Excellence (CRHP/CHRE), might be able to undertake this function but, on reflection, I do not think that it could. I think that there would be a conflict between its role of appealing unduly lenient decisions and a responsibility for appointment of the panels whose decisions it might wish to appeal. Having ruled the CRHP/CHRE out, I am unsure which other existing body could undertake the task. However, I consider that some way must be found because this is the only means by which the GMC can avoid the charge of being prosecutor and judge in the same case.
27.209	Hiving off the adjudication function would not deprive the GMC of all interest in the adjudication process. The GMC would still be involved in the development of standards, criteria and thresholds for all stages of the process, including the adjudication stage. It would also be able to monitor the outcomes of cases and thereby to inform itself of the need for any adjustment in the standards, criteria and thresholds. At paragraphs 27.213-27.230 below, I shall discuss the possible methods for the development of standards, criteria and thresholds.
27.210	If adjudication were to be hived off, as I have recommended, some of the recommendations that follow will be irrelevant. I shall make them nonetheless, in the event that this is not done.
The Statutory Tests
27.211	At paragraphs 25.41-25.69, I explained why I consider that the statutory test for the adjudication stage and the GMC�s formulation of the investigation stage test will both give rise to difficulties of operation. I do not propose to repeat those reasons here or to restate what I think should be done to alleviate those difficulties. I recommend that the tests I have suggested be adopted.
A New Route to Impairment of Fitness to Practise
27.212	At paragraphs 25.70-25.71, I have explained why I consider that it would be desirable for section 35C of the Medical Act 1983 (the 1983 Act) to be amended to add a further route by which there might be a finding of impairment of fitness to practise. This would be �deficient clinical practice� and would be designed to cover those cases which involve, say, one or two incidents of negligence or poor clinical practice which do not amount to misconduct and which also do not show the pattern of poor clinical performance which is necessary in order to trigger a performance assessment. I recommend that that change should be made on the next occasion when the 1983 Act is amended.
Standards, Criteria and Thresholds
The Need
27.213	The need for the setting of standards, criteria and thresholds to be applied by those taking decisions at each stage of the GMC�s FTP procedures runs as a thread through almost all of the last ten Chapters of this Report. Indeed, as I have said earlier in this Chapter, the need for agreed thresholds for the standards of professional conduct and medical care goes beyond the GMC. Patients should know what they are entitled to expect from the healthcare system. Those are the standards by which patient complaints should be judged. People working in healthcare management - and I include those working in PCOs - need standards by which they can decide whether they should take disciplinary action against a doctor or invoke their list management powers. At the moment, such managers have to make up their own minds about whether the conduct or practice under consideration is acceptable or not. They have to make up their own minds whether unacceptable conduct or practice is serious enough to justify a report to the GMC.
27.214	Elsewhere in this Report, I have referred to the occasions on which the GMC has been urged to formulate standards, criteria and thresholds for use by its decision-makers. In 1996, 2000 and 2003, Professor Isobel Allen, Emeritus Professor of Health and Social Policy, University of Westminster Policy Studies Institute, urged the GMC to produce agreed standards, criteria and thresholds by which decision-makers could determine whether a set of facts amounted to SPM. Until recently, the response of the GMC has been that, at least until 2000, all decisions about SPM or SDP were being taken by highly qualified and experienced members of the GMC. There was no need for them to have standards, criteria or thresholds because they could recognise SPM and SDP when they saw them. They were also able to apply the appropriate tests at the preliminary stages of the FTP procedures. I cannot accept that that was so. In Chapter 17, I described the difficulties that had arisen in defining SPM. I reported that Sir Donald Irvine, who had very long experience as a member of the GMC, culminating in six years as its President, had said that disputes about whether a particular set of facts amounted to SPM gave rise to much �heat� and �emotion�. In addition, the need for standards, criteria and thresholds has been underlined by the many occasions on which, in this Report, I have drawn attention to inconsistency in decision-making at every stage of the old FTP procedures.
27.215	SPM and SDP as concepts have now disappeared, but I am convinced that the concept of �impairment of fitness to practise� will be even more difficult to define and recognise. I accept that most doctors may believe themselves to be able to recognise impairment but, in doing so, they are applying their own personal standards. They are not applying agreed standards and, unless standards, criteria and thresholds can be agreed, decisions on �impairment of fitness to practise� will be inconsistent, as decisions on SPM were in the past. There will be no diminution in the �heat� and �emotion� of the debate or in inconsistency of outcome unless and until there are some agreed standards.
27.216	The GMC also argues that it provides standards and criteria in its publication �Good Medical Practice�. Its stance is that departures from those standards might result in referral into the FTP procedures, with the possibility of action on registration. Yet it is clear that not every departure from the standards in �Good Medical Practice� will result in referral into those procedures. The problem is that no one knows how serious a departure from �Good Medical Practice� has to be before disciplinary action will be taken or action on registration will follow.
27.217	Another objection raised by the GMC to the suggestion that it should prepare agreed standards, criteria and thresholds for approaching decisions about SPM was that the process of doing so was difficult to the point of impossibility. SPM, the GMC argued (and I paraphrase) was capable of covering a very wide range of conduct and practice. It was not possible to devise a threshold for every single circumstance in which SPM might be found. I agree that the task in respect of SPM in the past would not have been an easy one. The task for the future, in respect of �an impairment of fitness to practise� and �an impairment of fitness to practise to a degree justifying action on registration� will be even more difficult. But just because it is difficult does not mean that it must not be tackled. The new FTP procedures have now come into operation and decision-makers will have very little help in deciding on which side of the various �lines� a case will fall. The GMC has produced some draft guidance for case examiners and panellists at the investigation stage and for panellists at the adjudication stage. This guidance is in many respects sensible and helpful; it identifies relevant factors for decision-makers to take into account. But it does not go far enough; it does not help them to decide where to draw the line. They are still left to apply their own personal standards.
27.218	At the Inquiry hearings in December 2003, Sir Graeme Catto and Mr Scott said that it was the GMC�s intention to provide a series of �case reports� which would contain examples of circumstances in which SPM had or had not been found in the past. It was hoped that these would prove useful for decision-makers in the future. As I reported in Chapter 21, nine months later, five very brief case studies were published. These are so brief as to be �unfit for purpose�. In addition, two of the five appear to be mutually inconsistent.
27.219	In Chapter 25, I have suggested tests for the investigation and adjudication stages which would, if adopted, make the task of decision-makers easier. These tests would help decision-makers to analyse the allegation or the established facts to see whether what is alleged would, if proved or admitted, amount to impairment of fitness to practise. However, I do not suggest that the new tests will remove the need for standards, criteria and thresholds. If the existing guidance, the case studies and my proposed tests are all that is to be provided (and these last may be rejected by the GMC), I foresee real problems of inconsistency at each stage of the process because individuals will be applying their own personal standards.
27.220	In the area of guidance on the imposition of sanctions, the GMC has made some progress, in that it has published Indicative Sanctions Guidance (ISG). This is helpful; it provides a general idea of what kind of sanction is appropriate where certain features are present in a case. The guidance is particularly helpful where it descends into the detail of how to approach a particular class of case. However, although the ISG is helpful, in my view, panellists need more help. I recognise that there is now a means by which any decision on sanction can be appealed, either because it is too severe or because it is unduly lenient. However, I think the GMC would agree that it would not wish to rely upon the appeal process in order to establish a proper framework for the imposition of sanctions. I am sure that it would agree that it would be preferable if the decisions were right in the first place.
What Should Be Done?
27.221	I have said enough about the need for the development of agreed standards, criteria and thresholds. I accept that the task of development is not easy. I have observed earlier in this Report that it is easier to criticise the work of others than to propose a better way. I do wish to be constructive. It appears to me that there are two possible ways of approaching the problem of standard and threshold setting.
27.222	One method would involve analysing a number of sets of circumstances (topics) that might be expected to arise in FTP procedures and envisaging gradations of increasingly serious examples of conduct or practice within that topic and deciding where the thresholds should lie. I did not know whether this idea would be feasible. Accordingly, the Inquiry invited Professor Baker to produce a paper setting out his ideas about how the task of analysing topics and setting standards, criteria and thresholds might be tackled. His work has now been published on the Inquiry website. I shall summarise his suggestions as briefly as I can.
Professor Baker�s Paper
27.223	Professor Baker envisages that research would have to be done into the likelihood that certain features in a particular case are valid indicators of a doctor�s fitness to practise. Conduct of the research would require the collection of evidence from a wide variety of sources. The starting point would have to be actual cases in which decisions had been made, either by the GMC or by NHS trusts, about allegations of misconduct, etc. There would have to be systematic follow-up of such cases to find evidence of the likelihood of further complaints or problems associated with particular categories of complaints. There would also have to be comparisons between doctors with selected characteristics who have or have not had complaints made about them. In addition to evidence derived from actual cases, Professor Baker suggests that further information would also be required about public expectations and about the ethical codes of healthcare professionals, including international codes. When all this information and evidence has been assembled, some means would have to be found of combining it so as to produce a set of standards and criteria suitable for use in medical regulation. That process would involve the making of value judgements. Accordingly, in Professor Baker�s view, the public and healthcare managers should be involved, as well as members of the medical profession.
27.224	Professor Baker then considers a number of options by which this process might be undertaken. He discusses the advantages and disadvantages of the various methods, including their validity, feasibility and cost. He considers options for the scope of the standards and criteria, for example, whether the scope should be limited to the issues covered by �Good Medical Practice� or whether it should cover issues raised in wider consultation within and outside the GMC. Another set of options relates to the classes of people who might be involved in the standard-setting process. He assumes that the GMC will be at the heart of the process but considers the advantages and disadvantages of involving other groups. He examines various options for discussion and decision-making in the standard-setting groups. He considers different options for the testing and updating of the standards and criteria that would result from the initial standard-setting process. Professor Baker does not say which of these various options should be adopted, although he expresses a preference for processes which involve a wide range of consultation, as he considers that the results would be more likely to attract and retain public confidence.
27.225	Finally, Professor Baker gives some hypothetical examples of the way in which standards might be set on various specific topics, all taken from the principles set out in �Good Medical Practice�. These include establishing a clinical history, taking suitable and prompt action, keeping clear records, taking part in audit, dealing with patients who decline to take part in teaching or research, raising concerns about fellow healthcare professionals and the duty of honesty in record keeping, document preparation and certification. The resulting hypothetical standards do not demonstrate actual thresholds but they do produce categories of conduct which are to be regarded as �acceptable�, �unacceptable� and �seriously unacceptable�. It seems to me that, if standards of this kind could be produced for a large number of topics, the task of decision-makers both within and without the GMC would be made very much easier.
An Alternative Approach: the Use of Case Summaries
27.226	Another possible approach would be to use a collection of case summaries, in which decisions that are agreed to be �correct� could be collated into topic groups and published. Such collections of cases would not seek to define thresholds but would, rather, seek to illustrate where the threshold had been (correctly) set on other occasions. It would be necessary to have examples that fall on either side of any dividing line so that the decision-maker is able to �get his/her eye in� as to which side of the line the particular case under consideration should fall. This is a process which is used extensively in legal work. For example, there exist two encyclopaedias on employment law, containing a large number of case summaries from which practitioners and decision-makers can develop a �feel� for whether a dismissal has been fair or unfair. There is a book containing cases about road traffic accidents; the decision-maker can �get his/her eye in� about whether, in a particular set of circumstances, a driver, cyclist or pedestrian has been negligent. There are encyclopaedias on sentencing in criminal cases and on awards of damages in personal injury cases. None of these case collections seeks to provide the �right answer� in any particular case because the facts of all cases are different and because there must be an element of discretion for the decision-maker. But they do enable practitioners and decision-makers to �get their eye in�.
27.227	Because it is important that the GMC decision-makers should have guidance on thresholds for use at both the investigation and the adjudication stages, the preparation of the case summaries would entail the examination of quite a large number of cases which had come into the FTP procedures. For a start, all the cases entering the procedures during a three-month period might be examined. All would be anonymised and the available information summarised using a standard template so that different cases could be readily compared one with another. After the investigation stage decision had been taken, all cases would be considered by a group of assessors who would decide whether, in their view, the decision taken was �correct�. Cases with �incorrect� decisions would be discarded; cases with �correct� decisions would be used as guidance on the investigation stage test. Cases which had gone before FTP panels would also be considered by the group of assessors. If a decision on �impairment of fitness to practise� and/or �impairment of fitness to practise to a degree justifying action on registration� was considered �incorrect�, the case would be discarded. Those cases with �correct� decisions would be used as guidance. The assessment group would also consider any sanctions imposed or decisions not to impose a sanction. Once again, �incorrect� or inappropriate decisions would be discarded and �correct ones� would be kept as guidance. As more cases were collected, it would be possible to divide them into groups and subgroups relating to different types of commonly occurring case. For example, it would not be long before there were groups of cases involving the abuse of drugs, dishonesty, indecency and improper relationships with patients. In due course, there would be groups of cases of many different types, including health and performance cases.
27.228	If this approach were to be adopted, the assessment group should, in my view, comprise some doctors, other healthcare professionals, healthcare managers and some lay people from a variety of backgrounds. In Chapter 21, I mentioned the Sentencing Advisory Panel, which advises the Court of Appeal (Criminal Division) on sentencing policy. Some of its members are judges, barristers and solicitors but there is also a strong non-legal membership. I have in mind a comparable mixture of medical and lay members. I would expect the GMC to have a major voice within the group but the objective would be to reach a consensus acceptable to both the medical profession and the public.
The Way Forward
27.229	It is not my intention to recommend either the use of Professor Baker�s suggested method or the alternative method of collecting case summaries. It seems to me that the advantage of Professor Baker�s method is that the results would be soundly based in scientific evidence. The major disadvantage is that I think it would take a long time to produce results that could be used by decision-makers. The advantage of the case summary method is that it would be easier to set up and results could be expected in a shorter time. The results would be based on actual cases and would therefore soon provide guidance on the kinds of case that crop up regularly. The GMC Presenting Officers and the doctors� representatives would soon become familiar with the published case studies and would be able to draw a FTP panel�s attention to any that were comparable to the case under consideration. Panellists would not be expected to become familiar with all the case summaries. Such case summaries would also be useful for the courts when dealing with appeals. The GMC might have other ideas about how this work should be done. Yet more ideas might come from other quarters. I hope that there will be a debate about the best way forward. However, it is vital that this problem must not be shelved. Some way must be found - soon - to provide guidance on standards, criteria and thresholds so that decision-makers will be able to reach reasonably consistent decisions at both the investigation and the adjudication stages.
27.230	It appears to me that, whatever method of standard setting is to be adopted, a panel or group of people will be required. This is essential if the public is to have confidence in the results. It seems to me that the CRHP/CHRE could play an important role here. Indeed, it may be that it would welcome the opportunity to facilitate the setting of standards across the whole field of healthcare regulation. Many of the issues that arise in GMC cases, such as dishonesty, indecency, breach of confidentiality and failure to obtain proper informed consent, must arise in other contexts. I recommend that the CRHP/CHRE be invited to set up a panel of professional and lay people, similar in nature to the Sentencing Advisory Panel, which would be the vehicle for whatever method of standard setting is eventually adopted. It could remain in existence and review standards periodically.
Standards in Relation to Performance Procedures
27.231	In the passage above, I have discussed the need for the setting of standards in respect of many aspects of misconduct and clinical practice. In the past, the problem has been lack of agreement as to what amounted to SPM. However, a different problem arose in respect of the GMC�s performance procedures. There, a standard had been set. The GMC performance assessment tools (for GPs) are calibrated against the standard of summative assessment, the process used to assess whether a doctor�s competence and performance are adequate for him/her to be admitted to general practice. The problem is that, in the past, panels of the Committee on Professional Performance (CPP) appear on occasion to have applied their own personal standards (rather than the standard at which the performance assessment tools are set) when considering whether a doctor�s performance was seriously deficient. I have mentioned more than once in this Report the fact that the standards applied within the GMC�s performance procedures have been very low. I shall not quote the evidence relating to this again. There is no indication of an intention to raise them under the new FTP procedures. This low standard will, to a very large extent, underpin revalidation. In my view, for reasons of patient protection, there is an urgent need for this standard to be raised. There can be no justification for judging the performance of an experienced GP by a standard lower than the equivalent of the standard set for admission to general practice. I do not know how this problem should be solved but I recommend that the GMC should give urgent attention to it. Unless this is done, patients will be left at risk and revalidation will be without value.
The Investigation Stage
The Preliminary Sift: the Test for Jurisdiction
27.232	At paragraph 25.115, I have expressed the view that the rule which sets out the test to be applied by the Registrar (or by a member of the GMC staff, exercising his legal powers) on receipt of an allegation should be amended to give greater clarity. I have suggested an appropriate wording. It may be that there is no confusion within the GMC about the meaning of the rule. However, the meaning of the words should be clear to all. There is a need for decisions taken at this stage to be audited to ensure that the test is being correctly applied. I also recommend that criminal cases in which a doctor has been conditionally discharged should be treated as convictions.
Advising the Makers of an Allegation to Use Local Complaints Procedures
27.233	At paragraphs 25.116-25.120, I discussed the practice (which, so far as I know, was followed until the termination of the old FTP procedures) of closing cases in which local complaints procedures had not been exhausted, without considering whether they raised a question of SPM. I have said that, in my view, this practice was not only unlawful but also not in the interests of patient protection. I had hoped to see a clear and unequivocal statement that the practice had been abandoned under the new procedures. No clear statement has been made. As I have said, I have examined the Rules, the draft Guidance, the November 2004 draft Investigation Manual and the initial processing and assessment form. The only reference to the giving of advice about the use of local complaints procedures appears in a context which suggests that such advice will be given only in cases in which the GMC has already decided that the case does not fall within its remit. I would feel completely reassured by that state of affairs, were it not for the fact that there was no reference to this practice under the old Rules. The practice went on �outside the Rules� and was followed in hundreds of cases every year. I want to give the GMC the benefit of the doubt. I want to conclude that the GMC has indeed abandoned this bad practice under the new FTP procedures. I do not feel that, at present, I can do so with confidence. It would have been quite possible for the GMC to put an immediate stop to the practice at any stage; no legislation would have been required. I hope that this practice has stopped with effect from 1^st November 2004. However, there is a danger that the practice will linger on because staff are so used to it. I recommend that there should be an audit of the reasons why cases are closed and of cases where consideration by the GMC is deferred. That audit should take place quite frequently.
Preliminary Discussions and Disclosure to Employers and Primary Care Organisations
27.234	At paragraphs 25.122-25.126, I discussed the practice, introduced in May 2004, whereby the GMC communicates informally with employers and PCOs before deciding what action, if any, should be taken in response to an allegation. Such communications should be an important source of information to the GMC. The idea of adopting this procedure was discussed in evidence at the Inquiry hearing when Mr Scott said that the GMC would consider it. He has since reported to Council that the practice is yielding useful information. I have noted that it has been reported that some of the medical defence organisations have objected to this new procedure but, as the November 2004 draft Investigation Manual provides for staff to communicate in this way, I assume that the GMC has decided that it should continue. I recommend that the Rules be amended to make formal provision for this practice, and to give the GMC power to require from the doctor the necessary details to enable it to make such a communication.
The Power to Direct Investigations
27.235	I recommend that case examiners should have the power to direct that particular investigations should be undertaken. They would have had that power under the 2003 draft Rules. Under the November 2004 Rules, the power to direct investigations lies solely with the Registrar, which, in practice, means that it lies with the GMC staff. I also recommend that IC panels hearing cases where the case examiners have disagreed should have the power to direct investigations.
Case Examiners
27.236	I recommend that case examiners, who are not lawyers, should be given advice about two matters. They should not take into account mitigation advanced by or on behalf of the doctor. It is not relevant to their decision at the investigation stage: see paragraph 25.163. Also, they should be advised to consult a lawyer if they are in any doubt as to whether there is a realistic prospect of proving the allegation: see paragraph 25.169.
Performance and Health Assessments
27.237	The November 2004 Rules provide that the Registrar may direct a performance and/or health assessment during the investigation stage. I recommend that case examiners and the IC should also have that power. I do not know what the policy will be for directing such assessments. I know that a full performance assessment is expensive and time-consuming. The Inquiry heard evidence that the GMC was considering the possibility of devising an abridged assessment and there were also suggestions that the work of assessment might be undertaken on a modular basis or that it might be �outsourced�. I do not know what developments there have been in these respects. In my view, it would be highly desirable for there to be an abridged form of assessment which could be used as a screening tool to detect whether there is a problem with the doctor�s performance, rather than seeking to measure the extent of it, as the full assessment does. I would have thought that an adaptation of the Professional and Linguistic Assessment Board test, or possibly a modified version of Phase II of the current performance assessment, might suffice. In my view, such an abridged assessment should be ordered in any case in which an allegation is made which potentially calls into question the doctor�s clinical practice, either because there are one or more allegations of bad clinical practice (such as perhaps a prescribing error) or because there are allegations that raise more general issues of poor performance. If the work has not already been undertaken, I recommend that the GMC should develop an abridged performance assessment and should use it as a screening tool. The GMC will, of course, also need a full performance assessment tool, on which to rely as evidence to place before a FTP panel. In order to avoid multiple assessments, I also recommend that the GMC should investigate the development of a modular assessment: see paragraphs 24.200-24.205.
27.238	As I explained at paragraphs 25.240-25.241, the draft Rules published in May 2004 would have provided that, on receipt of the report of an assessment of a doctor�s performance, the Registrar should send a copy to the doctor�s employer or PCO. The effect of this would have been to ensure that those with responsibility for clinical governance were fully aware of any problems of performance which might affect the doctor�s fitness to practise and which thus might have an impact on the safety of patients. However, the provision does not appear in the November 2004 Rules and it appears that it has been dropped.
27.239	I do not see how local NHS bodies can properly discharge their clinical governance obligations if they do not have access to this kind of information about the doctors for whom they are responsible. I therefore recommend that the provision should be reinstated as soon as possible.
Criteria for Letters of Advice
27.240	At paragraphs 25.174-25.180, I observed that the circumstances in which letters of advice were to be sent to doctors under the new procedures had remained as obscure as they were under the old procedures. The GMC recognised the need for greater transparency in this respect but has not made any changes to improve the position. I recommend that criteria for the sending of letters of advice should now be prepared and the power to send letters of advice should be incorporated into the Rules. The need for transparency is related to patient safety. If there are no clear criteria for the sending of letters of advice, there is a danger that this procedure will be adopted in cases which should be dealt with more severely; in other words, it may be used as a �soft option�. The use of letters of advice should be audited to ensure that this does not happen.
The Issuing of Warnings at the Investigation Stage
27.241	At paragraphs 25.181-25.196 and 25.204-25.218, I have discussed the difficulties which I think will arise in connection with the GMC�s proposals to issue warnings at the investigation stage. I fear that the proposed procedures for a �summary� oral hearing will be almost unworkable. I recommend that the GMC should reconsider these proposals in the light of my observations. I think that, in most cases in which a warning might be given at the investigation stage, it would be more appropriate for there to be a full hearing before a FTP panel which should decide whether the doctor�s fitness to practise is impaired. In the event that the GMC decides to proceed with its proposals as planned, I consider it important that the issuing of warnings by case examiners and the IC should regularly be audited. In particular, the question of whether it would have been more appropriate for the case to proceed to a FTP panel should be considered. There should also be audit of those cases in which an invitation is issued to a doctor to make written representations about the giving of a warning but where, on receipt of the representations, no further action is taken after receipt of the doctor�s representations.
The Procedure for Cancellation
27.242	At paragraphs 25.243-25.250, I reported on the GMC�s proposals for the cancellation of cases which have already been referred to a FTP panel. These provisions lack transparency and are open to abuse. I recommend that they be changed in the way that I have suggested, so that decisions on cancellation should be taken by panels of the IC and the reasons for the cancellation formally recorded. Both applications to cancel and cancellation decisions must be monitored and audited, and the reasons for the applications and decisions should be scrutinised with a view to steps being taken to minimise the number of cases in which referrals are subsequently cancelled. The number of cancellations and the reasons should be published in the GMC�s annual report.
Consensual Procedures
27.243	At paragraphs 25.251-25.253, I have sounded a note of caution about the GMC�s intention to introduce consensual procedures for cases other than those raising problems of adverse health or deficient performance. There is a danger that such procedures might lead to the �fudging� of factual issues. Such procedures could be open to abuse, as I explained in Chapter 25. I recommend that, if the GMC pursues its present intention to extend consensual procedures to all categories of cases, the disposal of such cases should take place in public at the adjudication stage and not in private as part of the investigation stage.
Revival of Allegations
27.244	At paragraphs 25.254-25.256 I mentioned that the practice of �reviving� closed cases was to be discontinued under the new procedures. I recommend that there should now be proper provision, enshrined in the Rules, whereby closed allegations can be revived. I have suggested that the usual �cut-off� period should be five years but that it should be possible, in exceptional circumstances and in the interests of patient protection, to reopen a case at any time.
Review of Investigation Stage Decisions
27.245	At paragraphs 25.257-25.264, I have welcomed the GMC�s proposal to introduce a review of investigation stage decisions, albeit only in limited circumstances. However, I recommend that the review should be carried out not by the President of the GMC, as is currently proposed, but by an independent external commissioner, appointed for the purpose. The commissioner could be appointed by the SoS. I also recommend that the right to a review should be extended to decisions of members of staff to reject an allegation rather than refer it to a case examiner.
Voluntary Undertakings in Cases with a Health Element
27.246	In Chapter 25, I have expressed a number of concerns about the way in which the giving of voluntary undertakings in cases with a health element will operate in future. First, at paragraphs 25.223 and 25.232, I lament the decision to remove responsibility for the operation of many aspects of the voluntary procedures from case examiners to GMC staff, who are not medically qualified. Under the 2003 draft Rules, it appeared that the voluntary procedures would be operated very much as they had been under the old health procedures, with an appropriately medically qualified case examiner taking over all the responsibilities formerly held by the health screeners. Those old arrangements were working well and it seems to me wrong to change them without good reason. I recommend that the GMC reverts to its original intention in this respect and employs one or two case examiners suitably qualified to carry out the former role of the health screeners. I recommend that the November 2004 Rules should be amended so as to provide that the arrangements for the obtaining and consideration of health assessments and for the management and supervision of doctors who are the subject of voluntary undertakings relating to health should be directed by a medically qualified case examiner. If a case is to be closed on the basis of a health assessment, the decision should be taken by two case examiners, one medically qualified and one lay and, if they disagree, by an IC panel.
27.247	If that recommendation were to be accepted, my only other recommendations in respect of cases involving a health element concern various issues arising out of supervision and the cessation of supervision. As these issues arise both in cases which will be dealt with by way of voluntary undertakings and in cases where conditions are imposed by a FTP panel, I shall deal with them later in this Chapter.
Voluntary Undertakings in Cases with a Performance Element
27.248	At paragraphs 25.238-25.239, I expressed my regret that most of the functions that used to be performed by medically qualified performance case co-ordinators will now be carried out by GMC staff, who are not medically qualified, rather than by medically qualified case examiners. Under the 2003 draft Rules, the functions of case co-ordinators were to be transferred to case examiners but, in 2004, most of them were transferred to members of staff. In Chapter 25, I have explained why I regard that change as retrograde. I recommend that the November 2004 Rules should be amended so as to provide that the arrangements for the obtaining and consideration of performance assessments and for the management and supervision of doctors who are the subject of voluntary undertakings relating to performance should be directed by a medically qualified case examiner, who should fulfil the functions previously carried out by a performance case co-ordinator. If a case is to be closed on the basis of a performance assessment, the decision should be taken by two case examiners, one medically qualified and one lay and, if they disagree, by an IC panel.
27.249	In evidence, the Inquiry was told that, in the future, the GMC intended to concentrate on regulation and not to become involved in the long-term remediation of doctors whose performance was deficient. I am not sure whether that remains the GMC�s intention. It appeared to me to be an appropriate change of approach.
The Adjudication Stage
Fitness to Practise Panels and Procedures at Panel Hearings
27.250	I recommend that there should be an explicit power in the Rules to allow the GMC to undertake any further investigations it thinks necessary after a case has been referred to a FTP panel and before the hearing. Such a power may be implicit but the position should be clear.
27.251	I have already recommended that the GMC should think again about its decision to retain control of the adjudication stage and should divest itself of the right to appoint, train and manage panellists. However, in the event that the GMC resolves to continue on its present course, I have some recommendations to make in respect of the adjudication stage.
27.252	I have welcomed the introduction of case management provisions, although I must point out that it is inappropriate that the GMC should have responsibility for �management� of case managers. I recommend that the committee charged with governance of the adjudication stage should audit the work of case managers to ensure that the orders made are adequately tailored to the needs of individual cases and to achieve the desired effect. I recommend also that case management should apply to cases with a performance element.
27.253	For reasons I explained in paragraph 25.285, I recommend that panellists should be advised to exercise caution about drawing adverse inferences from the failure to comply with case management orders.
27.254	In the event that the GMC decides to continue to be responsible for adjudication, notwithstanding my recommendation that it should be hived off, I recommend that the GMC should appoint a number of legally qualified chairmen who should, as an experiment or pilot scheme, preside over the more complex FTP hearings. The results of the pilot scheme should be scrutinised to see whether there are benefits in terms of the improved conduct of hearings, more consistent outcomes, improved reasons and fewer appeals.
27.255	I recommend that, as part of their training, FTP panellists should be advised about their discretion to admit hearsay evidence and other forms of evidence not admissible in a criminal trial. Panels have had such a discretionary power for many years but the evidence received by the Inquiry suggests that it was not used as flexibly or frequently as it should have been. Panellists should also be advised, during training, that it is entirely appropriate for them to intervene and ask questions if they feel that any issue is not being adequately explored. The proceedings should not be strictly adversarial; the FTP panel has an inquisitorial function.
27.256	I recommend that the GMC should reopen its debate about the standard of proof to be applied by FTP panels. The GMC has recognised that, in the future, FTP panels will sometimes have to consider allegations of misconduct and deficient performance at the same hearing. The application of different standards of proof may cause difficulty. Also, there should be full recognition that the GMC�s primary function is to exercise a protective jurisdiction and not a punitive one. That means that the civil standard of proof will usually be appropriate. I recommend that the GMC should introduce the civil standard of proof for all FTP decisions. However, I do accept that it is arguable that, for allegations which also amount to a criminal offence, the criminal standard of proof may be appropriate.
27.257	For reasons that I explained at paragraphs 25.274-25.279, I recommend that the GMC should abandon its intention to inform the doctor of the desired outcome of a case in advance of the hearing. It is not inappropriate for a GMC representative to make a submission as to outcome after the evidence has been heard, but it must be plain that this is only a submission and cannot in any way bind the panel.
27.258	For the reasons given in paragraph 25.309 I recommend that FTP panels should be required to give brief reasons for their main findings of fact.
27.259	At paragraph 25.310, I noted that, before deciding whether a doctor�s fitness to practise is impaired, a FTP panel will have the power to order a health or performance assessment. That power arises under rule 17(4). I welcomed that development. However, I expressed concern that, under rule 17(5)(b), on receipt of the assessment report, the FTP panel is empowered (without deciding whether the doctor�s fitness to practise is impaired or even without making findings of fact) to send the case back to the investigation stage so that case examiners can consider whether it would be appropriate for the doctor to be dealt with by way of voluntary undertakings. I said that such a course would not be satisfactory and explained why. Rule 17(5)(b) deprives the proceedings of transparency. I recommend that rule 17(5)(b) be revoked.
27.260	At paragraphs 25.313-25.315 and 25.317, I drew attention to the fact that there is no specific provision in the November 2004 Rules which requires or enables a FTP panel to take into account a doctor�s FTP history when considering the issues of impairment of fitness to practise and of sanction. The 2003 draft Rules had included such a provision. The omission in the November 2004 Rules is puzzling since it surely cannot be intended that FTP panels should not consider this information. It is all the more surprising since the rules governing the procedure of IC panels specifically empower them to take into account a doctor�s FTP history with the GMC or any other regulatory body when deciding whether to issue a warning. I recommend that rule 17(2)(j) should be amended to make clear what types of further evidence should be received before the panel decides whether the doctor�s fitness to practise is impaired. In my view, that should include evidence of the doctor�s FTP history. I had also envisaged that it would include any evidence the doctor wished to advance in mitigation, including purely personal mitigation. Also, rule 17(2)(l) should be amended to make clear what categories of evidence might be received after a finding of impairment of fitness to practise but before determination of sanction. I do not know what further evidence the GMC contemplates might be admitted at this stage.
27.261	At paragraph 25.316, I referred to the inconsistency between, on the one hand, the provisions of section 35D of the 1983 Act and rule 17(2)(k) of the November 2004 Rules and, on the other hand, the contents of the September 2004 draft Guidance for Panellists. The draft Guidance must be corrected as it will confuse panellists. I have also referred to what I consider to be the illogicality of the various outcomes open to a FTP panel. As I have explained, the November 2004 Rules require a FTP panel to decide whether the doctor�s fitness to practise is impaired. If the FTP panel decides that his/her fitness to practise is not impaired, the FTP panel has the power, under the 1983 Act, to give the doctor a warning as to his/her future conduct or performance. Although at first sight this appears odd, I can understand that a warning might be appropriate in a case where a doctor has done something wrong in the past but where the panel considers that there is no current impairment of fitness to practise. However, if the FTP panel finds that the doctor�s fitness to practise is impaired, it has no power to issue a warning. The options open to it in that event are to take no action at all, or to take action on the doctor�s registration - by imposing conditions on or suspending registration, or by erasing the doctor�s name from the register. I recommend that the legislation be amended to permit a panel to issue a warning where it has found an impairment but one that is not of a degree justifying action on registration.
27.262	At paragraphs 25.324-25.326, I referred to the new provision (rule 17(2)(m)) which would permit a FTP panel to �take into account� any written undertakings (including undertakings relating to limitations on his/her practice) entered into by the doctor which the FTP panel considered to be sufficient to protect patients and the public interest. I said that it was not clear to me at what point in the proceedings it was intended that such undertakings should be taken into account. If the FTP panel were to take undertakings into account at the stage of deciding what sanction to impose (e.g. by accepting the undertakings rather than imposing formal conditions), that might be acceptable provided that there was provision within the Rules for supervision of the doctor to ensure compliance with the undertakings and for dealing with a breach. There would also have to be provision for review hearings in cases where undertakings had been given. At present, there is no such provision and I recommend that, if rule 17(2)(m) is to be retained, the Rules should be amended as a matter of urgency to include such provision. If there is no means of ascertaining whether a doctor is complying with undertakings which s/he has given and no means of dealing with him/her if s/he is not, patients cannot be adequately protected. That said, I do not see the necessity for undertakings to be given at the sanction stage. By that time, the FTP panel will have made its findings in relation to impairment of fitness to practise and action on registration and will have heard evidence and/or submissions. It will be in a position to impose conditions of its own choosing. If it does so, provision for review hearings and for action in the event of breach are contained within the existing Rules. I cannot see anything to be gained by the new provision and I recommend that the best course of action is for rule 17(2)(m) to be revoked.
27.263	My concern is that it may be intended that undertakings should be �taken into account� by a FTP panel before it has made findings of fact and/or a decision on impairment of fitness to practise. The provision is wide enough to permit this. That could lead to the �fudging� of these important issues and would be most unsatisfactory. I recommend that, if it is to be retained, the rule should be redrafted to make clear that undertakings can be taken into account only at the stage of deciding on sanction after findings of fact and of impairment of fitness to practise have been made.
The Need for Supervision
27.264	I recommend that, throughout the period that a doctor�s registration is subject to conditions, someone within the GMC (I would suggest a case examiner) should take responsibility for monitoring the doctor�s progress and for ensuring, so far as is possible, that s/he is complying with the conditions imposed. That is vital for the protection of patients. I further recommend that, in every case where a doctor is continuing to practise subject to conditions, a professional supervisor should be appointed to oversee the doctor�s progress. I recommend that such professional supervisors should be in direct contact with the case examiner appointed by the GMC and should be required (like medical supervisors under the old voluntary health procedures) to provide regular written reports on the doctor�s progress and on his/her compliance with conditions and restrictions on practice. I consider that the direct contribution of the professional supervisor would enhance the quality of the overall supervision and thus reduce the risk to patients of allowing such doctors to continue in work. In a case where the doctor�s health is an issue, a medical supervisor should be appointed as under the old voluntary health procedures.
27.265	Any breach of a condition imposed by a FTP panel (save for the most minor breach) should result in the doctor being brought back before the panel so that consideration can be given to imposing a sanction which affords a greater degree of protection to the public.
27.266	So far, I have referred to the need for supervision of doctors who are subject to conditions imposed by a FTP panel. However, the same considerations apply to doctors who have given voluntary undertakings or had undertakings �taken into account� by a FTP panel. Where the case raises issues of health, the doctor should be subject to medical supervision as under the old voluntary health procedures. In all cases where voluntary undertakings are in place and the doctor is continuing to practise, a professional supervisor should be appointed. I recommend that such professional supervisors should be in direct contact with the case examiner appointed by the GMC, even in health cases where, in the past, the arrangement has been for a professional supervisor to be in indirect contact only, through the medical supervisor.
Review Hearings
27.267	The most recent guidance from the GMC suggests that, where a period of suspension of or conditions on registration has been imposed, there will �generally� be one or more review hearings at which the FTP panel may, inter alia, extend the period of suspension or conditional registration or revoke or vary the conditions or permit the doctor to resume unrestricted practice at the expiry of the period of suspension or conditional registration. Review hearings are extremely important. They are the �teeth� behind the sanctions other than erasure and should focus the doctor�s mind on the need to undertake any necessary remediation. I recommend that the Rules should be amended to ensure that there is at least one review hearing in all such cases, unless there are exceptional reasons why no hearing should take place. The period within which the first review hearing is to be held should be set at the original hearing and should be within a reasonably short period (no more than a year in a case where conditions have been imposed); this will enable the FTP panel to ensure that the doctor is complying with his/her conditions and making progress. A second review hearing can then be fixed for a time near to the expiry of the period of conditional registration at which the fitness of the doctor to return to unrestricted practice can be considered. There should be an expectation that the doctor will give evidence and answer questions from the FTP panel.
27.268	The November 2004 Rules provide that the Registrar (in practice, the staff exercising his legal powers) may carry out any necessary investigation and obtain any expert or other evidence that he considers necessary in preparation for a review hearing. He may also invite the doctor to undergo an assessment of his/her performance or health. Under the 2003 draft Rules, these functions would have been carried out by a designated case examiner. I recommend that the arrangements set out in the 2003 draft Rules should be reinstated. The kind of investigations to be undertaken (in particular, the commissioning and consideration of expert reports and assessments) should be undertaken by medically qualified case examiners. Of course, they will require the support of staff in administering the arrangements but a case examiner should take the decision about the type and extent of evidence that will be required by the FTP panel at the review hearing. If, as I have suggested, the case examiners are to have responsibility for monitoring the progress of doctors who are subject to conditions, it will be even more appropriate for them to direct the preparations for review hearings.
27.269	In the past, doctors have been permitted to return to practice after the expiry of a period of suspension or conditional registration without any further hearing of their cases by a panel of the Professional Conduct Committee (PCC). Sometimes, the doctor has been released from conditions on registration on the basis of a report from the person overseeing his/her remediation. It has not been unusual for the PCC and the CPP to allow a doctor to return to unrestricted practice without any objective assessment being made to ensure that the deficiencies which led to the original sanction being imposed have been cured and that the doctor is indeed fit to practise. Under the November 2004 Rules, as I have said, the Registrar has the power to invite the doctor to undergo a performance or health assessment but there is no requirement that the Registrar should do so. In my view, this is unsatisfactory and does not afford adequate protection for patients.
27.270	I recommend that, in all but exceptional cases, a doctor whose registration has been suspended should be required to undertake an objective assessment of his/her fitness to practise before being permitted to return to practice. The kind of exceptional circumstances I envisage are where the doctor has been subject to a short period of suspension which was intended to be a �sharp rap on the knuckles� for an incident of misconduct which did not affect his/her clinical competence or performance. In all other cases, it is likely that the doctor will have been found to have a serious impairment of fitness to practise and that the period out of practice will have rendered him/her even less fit to practise than hitherto. An assessment is, therefore, imperative. That assessment should be considered by a FTP panel and a decision taken as to the doctor�s fitness to practise. Even when a doctor who has been the subject of a suspension is deemed fit to return to practice, it will in most cases be appropriate for him/her to be subject to conditions (in particular a condition of professional supervision) for a period after s/he resumes practice and for a further hearing to be fixed at which his/her progress in practice can be considered and a decision taken as to whether s/he is fit to practise unrestricted.
27.271	Where a doctor has been subject to conditions on his/her registration, s/he should be required to undertake an objective assessment of his/her fitness to practise before being permitted to return to unrestricted practice. That assessment should be considered by a FTP panel at a review hearing in the way that I have described above.
27.272	The nature of the assessment will vary according to the aspects of the doctor�s performance, health or conduct that gave rise to the suspension or conditions. It will not necessarily be the full performance assessment although, in cases where there has been a multiplicity of deficiencies, this may be necessary. In a case where the doctor�s competence has been deficient, it may be appropriate for him/her to undertake an assessment comprising all or part of Phase II of the performance assessment. Where a doctor has been required to undergo a specific type of retraining, an assessment based on his/her competence and performance in that particular area of practice might be suitable. What is essential is that the doctor should not be allowed to return to unrestricted practice unless and until the deficiencies which led to action being taken on his/her registration have been successfully addressed and s/he meets an acceptable standard of practice. At present, the appropriate standard for GPs is that set for summative assessment; it is to that standard that the performance assessment instruments are calibrated.
27.273	If a doctor undergoes an assessment to ascertain whether s/he is fit to resume practice or unrestricted practice and the assessment reveals that s/he does not meet the required standard, it is undesirable that s/he should �limp on� with repeated periods of conditional registration. The time will come when it becomes apparent that the doctor is unlikely ever to meet the standard for unrestricted practice. At the time of the Inquiry hearings, the GMC appeared to have recognised that, if a doctor has been given a chance to improve and is unable or unwilling to do so, the GMC�s primary duty to protect patients requires that it should remove him/her from practice. I am uncertain whether or not this remains GMC policy. I thought that that was the right policy and recommend that it should be adopted. In cases of this type, it might be necessary to commission a new full assessment with a view to the doctor�s erasure. I do not suggest that this policy should be adopted in respect of impairment caused by adverse health. In such cases, erasure is rightly not available and indefinite suspension may be appropriate.
27.274	It is, in my view, important that the same standards of supervision, review and reassessment should apply in cases in which voluntary undertakings have been accepted or �taken into account� by a FTP panel as apply where conditions have been imposed. Any breach of such undertakings should be referred to a FTP panel; that should happen now, although the Inquiry heard evidence that it does not always happen when it should. There should be a reassessment before voluntary undertakings are allowed to lapse. Moreover, voluntary undertakings should not be allowed to continue in force and be renewed indefinitely. The time should come when enough opportunity for improvement has been given. In my view, if undertakings have been given at the investigation stage, it should be for the case examiner to decide when the time has come for the doctor to be referred to a FTP panel with a view to further action being taken.
Applications for Restoration to the Register
27.275	The 2003 draft Rules provided for a case examiner to be appointed to consider and prepare the evidence to be placed before a FTP panel at the hearing of a doctor�s application for restoration to the register. The case examiner was to have the same powers to procure expert and other evidence as in relation to a review hearing. Subsequently, these proposed arrangements underwent change and, under the November 2004 Rules, the functions which were previously to have been undertaken by case examiners will be given to members of the GMC staff. I recommend that the arrangements contemplated under the 2003 draft Rules should be reinstated. I do so for the same reasons as I have previously outlined in relation to review hearings. Preparation will include the commissioning of an appropriate assessment dealing with the doctor�s fitness to resume practice and may also involve obtaining other expert evidence. It might also involve the consideration of complex evidence relating to the events giving rise to the original erasure. All these functions, it seems to me, require the input of a case examiner, preferably one who is medically qualified. Support from the administrative (and probably legal) staff of the GMC staff will obviously be needed, but the preparations for the hearing should in my view be directed by a case examiner.
27.276	My understanding is that, since 2000, every doctor whose application for restoration to the register has reached the second stage of the procedure has been required to submit to an assessment for the purpose of satisfying the PCC panel as to his/her good character, professional competence and health. I entirely agree that it is essential that there should be an independent objective assessment of the doctor�s fitness to practise. This should be directed in part at the deficiencies which led to his/her original erasure but must also take into account that, even if the problem was not one of poor performance, following a period of more than five years out of clinical practice, his/her competence and clinical skills must also be in doubt. The assessment must, therefore, be directed at every aspect of fitness to practise and the doctor should not be restored unless s/he has met the required standard. Panels considering restoration need guidance as to the standards and criteria to be applied. I recommend this be provided through a collection of case summaries.
27.277	I understand the reasons why the GMC has decided against the automatic imposition of conditions on the registration of a doctor who has been restored to the register and I do not propose to recommend that course. Instead, I recommend that, as an additional safeguard for patients, doctors who are restored to the register should be required to have a mentor whose task it will be to monitor their progress in practice and to report to the GMC on their progress. I suggest that those reports should be considered by the case examiner appointed to deal with the restoration application. If it appears from the mentor�s reports that further problems are arising, s/he will be able to take appropriate action within the FTP procedures.
Cases Involving Drug Abuse
27.278	In Chapter 23, I have discussed the need for a more searching examination of the circumstances underlying allegations of drug abuse by doctors, and convictions for offences related to drug abuse. I have said that any factual disputes must be resolved and that there must be a more thorough investigation of how the doctor�s drug abuse began. I also recommend that the GMC should commission research into the outcomes of the cases of those doctors who have gone through the GMC health procedures. In past cases, the GMC has access to a pool of valuable information. The research might well inform the development of new or improved methods of supervision; the GMC would be able to find out what had worked best in the past. Also, by finding out which drug abusing doctors had relapsed or had otherwise not �done well�, the GMC would gain valuable insight into the characteristics of drug abusing doctors.
Transparency
27.279	I have said that it is important that the GMC�s processes should be transparent. Doctors, those representing them and the public should be able to understand exactly what the GMC does and why. There are several respects in which the present arrangements should be improved. First, there are some matters that should be covered in the Rules but are not. Examples include the tests that are to be applied at each stage of the process and the provisions for the issue of letters of advice. I recommend that every aspect of the procedures in which either doctors or makers of allegations have a direct interest should appear in the Rules. So far as purely internal procedures are concerned, I can see that it would be impractical and restrictive if every aspect of the procedures had to be enshrined in the Rules. However, that is not to say that the internal procedures should be shrouded from the eyes of the public. They must not be. I recommend that the GMC should publish a FTP manual containing all its relevant Rules and guidance for panellists, case examiners and staff and any relevant Standing Orders. This would include such documents as the ISG and the standard forms used by staff and case examiners when recording their decisions. It may be sensible for this to be produced in loose leaf form so that it can be amended periodically. It could also go on the GMC�s website so that it could readily be accessed by anyone who needs to use it.
27.280	At various points in this Report, I have mentioned the need for clear statistical information to be provided by the GMC. For example, at paragraph 25.148, I said that the way in which reports of convictions are dealt with should be made clear to the public. Other categories of information that should be made public in a clear and comprehensible form are the numbers of cancellations of referrals to a FTP panel and reviews of decisions made at the end of the investigation stage. I recommend that the GMC should publish an annual report which should amount to a transparent statement of the year�s activities in relation to the FTP procedures and revalidation.
Revalidation
27.281	In Chapter 26, I expressed my concern and dissatisfaction about the GMC�s current proposals for revalidation. The GMC has told the public that revalidation will require every doctor to demonstrate that s/he is up to date and fit to practise. Section 29A of the 1983 Act imposes a duty on the GMC to make regulations providing for the revalidation of doctors. At section 29A, revalidation is defined as an �evaluation� of a doctor�s fitness to practise. I have explained that the process that the GMC intends to use for revalidation does not entail an evaluation of fitness to practise. In my view, this process is not fit for the purpose for which it is intended.
27.282	At paragraphs 26.191-26.197, I have set out some suggestions for the way in which the revalidation of GPs could be carried out. In brief, I suggest that the folders of evidence that all doctors working in the NHS have to compile for the purposes of appraisal should be examined by a panel of at least three assessors. One would be the clinical governance lead of the doctor�s PCT. Another would be a GP from another area, accredited by the RCGP as an assessor to standards approved by the GMC. The third would be a lay person. The folder would have to include certain specific items of evidence, to be determined by the GMC in consultation with the RCGP. I have also proposed that there should be various �proxy� methods of achieving revalidation.
Recommendation Relating to the Council for Healthcare Regulatory Excellence
27.283	At paragraph 21.187, I observed that the provisions of section 29 of the National Health Service Reform and Health Care Professions Act 2002 had given rise to considerable difficulty of construction in the case of Ruscillo. I recommend that, on the first occasion that the Act is to be amended, the opportunity should be taken to clarify that the Act provides for the CRHP/CHRE to appeal against �acquittals� or findings of �no impairment of fitness to practise� as well as in respect of sanctions which it believes were unduly lenient. There should in the future be a review of the powers of the CRHP/CHRE with a view to ascertaining whether any extension of its powers and functions is necessary in order to enable it to act effectively to ensure that patients are sufficiently protected by the GMC.
The Culture within the General Medical Council
27.284	In considering what recommendations I should make for the protection of patients in the future, I have had to consider whether, in my view, the GMC should retain responsibility for the conduct of the FTP procedures which, as I explained in Chapter 2, form an integral part of the present systems of monitoring and supervision of doctors, including GPs. These are the procedures by which the GMC should protect patients from dysfunctional doctors, i.e. doctors who, by reason of their misconduct, adverse health or deficient performance, put patients at risk of harm. The Inquiry has received evidence and submissions from some quarters suggesting that the GMC should no longer carry out that function. It has been suggested that the GMC does not have the protection of patients as its first priority; it is said that, rather, its priority is to safeguard the interests of the medical profession. I have already indicated that it is not my intention to recommend that the GMC should be deprived of its FTP function. It is important that I explain my reasons for reaching that conclusion.
27.285	The words that have appeared in the top right-hand corner of virtually every communication disseminated by the GMC in the recent past are �Protecting Patients - Guiding Doctors�. In modern parlance, this has been the GMC�s �strapline�. The words are intended to encapsulate the aims and philosophy of the GMC. I understand they may shortly be changed, although I do not know what form of words is proposed. Those aims and philosophy should have applied to all the GMC�s activities but they were perhaps of greatest relevance to the operation of the FTP procedures. In this Report, I have described the FTP procedures as they have been operated over the last 30 years. I have sought to examine the extent to which their operation has protected patients in accordance with the GMC�s primary purpose. For those who have had the patience and endurance to read Chapters 15 to 24, it will come as no surprise that I have reached the conclusion that the GMC has not, in the past, succeeded in that primary purpose. Instead, it has, to a significant degree, acted in the interests of doctors. Of course, I accept that the GMC also has a duty towards doctors; it must be fair in all its dealings with them. But, in the past, the balance has been wrong and, as I have illustrated, the imbalance was due to a culture within the GMC, a set of attitudes and an approach that put what was seen as being �fair to doctors� ahead of what was necessary to protect patients. Chapters 15 to 24 contain many examples of the way in which this culture operated. I do not propose to repeat them here.
27.286	It is important for the Inquiry to consider whether the culture within the GMC has changed. The GMC�s corporate attitudes and culture are fundamental to its capacity to function in the best interests of patients and of the public, as it is under a duty to do. It is also important that the GMC should recognise the shortcomings of its old FTP procedures and its inability to detect doctors whose practice was either aberrant or substandard. If, at the GMC, there had not been some change of culture and a recognition of the need for change, I would have had little hesitation in advising the SoS that he must make provision for some other way of dealing with doctors whose fitness to practise had been called into question. However, the need for changes to the FTP procedures was recognised, as was the need for an improved method of detecting aberrant behaviour and poor performance. Also, for reasons that I shall explain, I think that there has been some change of attitude and culture, although that change is by no means complete.
27.287	It is clear that the GMC did not recognise the need for change without some prompting from outside. The emergence of a number of medical scandals during the late 1990s must have played a significant part in the development of a resolve to reform. I have no doubt that there were, in the GMC, some who had for many years wished to see a change of both culture and practice. However, scandals such as those involving Shipman, Ledward, Green and others appear to have had the effect of bringing the majority within the GMC to the view that reform was necessary. Since that time, the GMC has been in a state of transition.
27.288	The transition has comprised three major reforms. First, the GMC�s constitution was changed with effect from July 2003. The Council was reduced in size from 104 to 35 members and the proportion of lay members was increased from 25% to 40%. However, elected medical members still wield an overall majority. I shall return to constitutional issues later. The second main reform was the development and introduction of the new FTP procedures, which came into effect on 1^st November 2004. The third was the development of the process of revalidation, which is due to come into effect in April 2005. The practical effects of the new FTP procedures and revalidation cannot yet be known. In addition to making preparations for those major reforms, during the last five years, the GMC has introduced some more modest changes to its FTP procedures. These were not dependent upon the introduction of the new procedures. I shall list a few because the circumstances in which these changes were introduced is of some significance in considering the extent of the culture change during the last five years.
27.289	In late 1999, the GMC discontinued the practice whereby medical screeners could also sit on the Preliminary Proceedings Committee (PPC); thereafter, screeners could not fulfil both functions. It appears that this change was made in anticipation of the coming into force of the Human Rights Act 1998, which was to take place in October 2000. In 2000, the GMC took greatly increased powers to make interim orders suspending or imposing conditions on a doctor�s registration in a case in which it is necessary for the protection of members of the public, or in the public interest or in the interests of the doctor concerned. This change was made because the GMC had been unable to take action to suspend Shipman from the register in August 1998, when he was under investigation for murdering his patients. At about the same time, in 2000, legislation was also introduced to require the GMC to disclose certain adverse information about doctors to employers and PCOs. Hitherto, the GMC had been reluctant to disclose such information as it had been thought that this might be unfair to doctors. The Government had insisted upon this change; as the major employer of doctors, the NHS wanted the information. No doubt that change too was precipitated, in part at least, by Shipman�s case.
27.290	In November 2002, the rule requiring a complaint from a private individual to be supported by a statutory declaration was abolished. That change had been recommended by Professor Allen and her colleagues in 1996. Mr Alan Howes, who was employed by the GMC between 1977 and 2002 and was Head of the Conduct Section from 1987 to 1994, told the Inquiry that there had been tension on this issue between some members of the Council who wanted the rule to be abolished and other members who wanted to keep the rule for the protection of doctors against false or frivolous complaints. It had taken a long time for the majority to accept the need for abolition. In the same month, November 2002, the Registrar was given power to send reports of serious convictions straight to a PCC panel, unless there were public interest reasons for not doing so. Previously, such cases had had to be considered by a screener and the PPC. This change had been recommended by Professor Allen in 2000.
27.291	In May 2004, the GMC introduced the practice of having an informal dialogue with the employer or relevant PCO in respect of doctors about whom complaints had been received. This had never previously been done and was perceived by some to be unfair to doctors since it involved disclosing to the employer or PCO the fact that a complaint had been received. Mr Neil Marshall, who has been employed by the GMC since 1996, told the Inquiry that, between December 1998 and April 2000, there had been a debate within the GMC about the seeking of background information about a doctor. He said that it had become apparent that, by not carrying out such searches, the GMC might be failing in its duty to protect the public. Eventually, it was decided that discussions should take place, but only in �more performance-like cases�. It was clear from the evidence, however, that it was common for no such discussion to take place. It appears that the change was made as the result of evidence given to this Inquiry. Another change was made as the result of observations made at Inquiry hearings. Until recently, doctors charged with or convicted of a criminal offence had not been required to report the fact to the GMC. The GMC now requires doctors to report these matters and a doctor would be guilty of professional misconduct if s/he failed to do so. A further example of a change brought about as the result of evidence given to the Inquiry relates to the identification of doctors against whom complaints have been made. In 2003, Professor Allen and her colleagues reported that 25% of doctors about whom complaints had been made in 2001 had never been identified. That meant that the GMC was unable to ascertain whether the doctor had a previous FTP history and that, if another similar complaint about the same doctor were to be received, the two could not be linked. The GMC could not even confirm that the �doctor� complained of was in fact on the medical register. At the Inquiry�s hearings, Mr Marshall acknowledged that the GMC should consider making more effort to ascertain the identity of doctors against whom complaints were made. It was clear from the evidence that, in some cases, all that was required was a telephone call. The Inquiry has been told that, since the hearings in December 2003, the GMC has taken steps to improve its systems for identifying doctors reported to it.
27.292	All those changes were for the better. They improved the position of complainants and the ability of the FTP procedures to protect patients. To some extent, the GMC is to be congratulated on making those changes. However, the disappointing feature is that all the changes appear to have been made as a reaction to some form of external pressure or advice. None of them appears to have been made because the GMC realised for itself that it was not acting in the best interests of patients and the public. Those changes do not demonstrate that there has been much of a change of culture within the GMC.
27.293	During the same period, the GMC failed to make a number of changes which, in my view, it would have made if it had had patient protection at the forefront of its collective mind. I shall mention four. Until very recently, the GMC has not employed staff for the purpose of investigating complaints or allegations against doctors. In general, in a conduct case, it has accepted the complaint, obtained the doctor�s response, obtained the complainant�s response to the doctor�s response and then decided whether to send the case through to the PCC for hearing. Thereafter, if the case was to go forward to the PCC, it would be investigated. As Mr Scott observed at the Inquiry, that was to �put the cart before the horse�. The GMC knew that this was the practice and should have realised that it was not satisfactory in the interests of patient protection. As a consequence of the practice, it was inevitable that some complaints against doctors would fail at the early stages for lack of investigation. Professor Allen had made this point in 1996. It is true that the GMC did not have statutory powers to compel the production of evidence before the stage when a case was referred to the PCC; but that was no bar to investigation. Only now, under the new FTP procedures, is it intended that the GMC should investigate cases at an early stage.
27.294	My second example relates to the GMC�s practice of closing complaints from private individuals and advising the complainant to use local complaints procedures; this was done without considering whether the complaint raised an issue of SPM and in the knowledge that NHS complaints procedures were profoundly unsatisfactory. It was a practice that plainly disadvantaged complainants and reduced the ability of the GMC to protect patients by dealing promptly with all potential allegations of SPM. Mrs Jean Robinson, formerly a lay member of the GMC, had, in 1988, drawn attention to the practice and its effects. Professor Allen had drawn attention to it again in 1996 and pointed out that some of the complaints being redirected were of a serious nature. It was not stopped, although it could have been stopped at any time as it was not sanctioned by the Rules; indeed, it was a breach of the Rules. Far from being stopped, in November 2002, the practice was extended to complaints about treatment in the private sector. The practice was the subject of discussion and some criticism at the Inquiry in December 2003. The briefing papers for the Council meeting in July 2004 suggest that the practice was still in operation at that date. So far as I am aware, it remained in operation until the demise of the old FTP procedures at the end of October 2004.
27.295	My third example relates to the GMC�s unwillingness to establish agreed standards, criteria and thresholds by which the FTP procedures, and particularly the old conduct procedures, could operate. Professor Allen and her colleagues drew attention to the need for them in their Reports of 1996 and 2000 and in their Paper of 2003. They made it plain that the absence of standards was resulting in inconsistency of decision-making and lack of transparency. The implications for patient safety were obvious. No real progress has been made.
27.296	Finally, I refer to the disclosure of information relating to a doctor�s registration status to persons making enquiry of the GMC. I described at paragraphs 27.174-27.178 how this information is imparted. I explained that, at the Council meeting of July 2004, Mr Scott explained that information was imparted only in response to specific questions, and that 999 out of 1000 callers asked only whether the doctor was registered. No further questions were usually asked. No member of Council made any observation about this. Nobody remarked that it appeared therefore that many prospective employers were receiving incomplete information about the registration status of the doctors they were about to employ. They were putting down the telephone having assured themselves that the doctor was registered, but they had not discovered whether the doctor was subject to conditions or even whether s/he had a recent FTP history. Similarly, it did not appear to be appreciated that members of the public might not be getting the information they were seeking. In short, nobody seems to have noticed that the way the GMC handles these enquiries is not in the best interests of patient protection.
27.297	My examination of the events of the last five years leads me to conclude that, although the GMC has made a number of beneficial changes, its culture has not altered radically. However, the GMC would have me believe that, insofar as there ever was any need for a change in culture, it has already occurred. In his opening submission to the Inquiry, made in November 2003, Leading Counsel for the GMC, Mr Roger Henderson QC, accepted on the GMC�s behalf that, in many ways, its FTP procedures had not been as they should have been. There had been problems of inflexibility, inadequacies of training and guidance and resulting inconsistency of decision-making. It was, I think, accepted that these shortcomings must at times have resulted in the GMC failing to act in the best interests of patients and for their protection. Mr Henderson acknowledged that some cases had been closed that should not have been closed. However, he did not volunteer any acceptance that there had been anything fundamentally wrong with the GMC�s attitudes or culture. The thrust of the evidence presented to the Inquiry by the GMC was that its priorities were clear; its primary duty was to protect patients and that is what it was doing.
27.298	The most important transitions effected in the last few years have been the preparations for the introduction of the new FTP procedures and of revalidation. I turn to consider whether the GMC�s approach to those important innovations demonstrates a change of culture and attitude.
27.299	In Chapter 25, I examined the development of the proposals for the new FTP procedures in detail - some might say in too much detail. I wished to understand the thinking behind that development. The GMC�s vision for the future procedures was clearly set out in its Consultation Paper published in 2001. That paper demonstrated a firm commitment to FTP procedures that would operate for the protection of patients, without compromising the need to be fair to doctors. On the basis of that document, I would have said that there had indeed been a change in the culture of the GMC. However, the translation of the vision into reality has been, in some respects, disappointing. As I explained in my conclusions to Chapter 25, I found that there had been no consistent transition from the initial vision to the implementation of the new procedures. The major change is that the old �silos� of the conduct, health and performance procedures have gone and are to be replaced by a single basis for the GMC�s powers to erase, suspend or impose conditions on a doctor�s registration, namely �impairment of fitness to practise�. There have been many other changes, some for the better, some for the worse. There has been a good deal of �chopping and changing� in the detail of the proposals and it is often hard to see any coherent principle behind the changes. The GMC has adopted a number of suggestions that have been made in evidence to the Inquiry. It has reacted positively to some of the criticisms and concerns about which the GMC witnesses were asked. But I do not feel confident that the GMC has maintained the clarity of purpose that it exhibited at the time it published its Consultation Paper in 2001. I do not feel confident that there is currently a determination that the new procedures will be operated with the primary objective of protecting patients.
27.300	Examination of the development of the GMC�s proposals for revalidation leads me to a similar conclusion. In Chapter 26, I described how, in the late 1990s, the GMC recognised that, in order to protect patients adequately, it must take proactive steps to identify under-performing doctors, instead of waiting for someone to make a complaint or allegation. It set out its principles with clarity in the Consultation Paper of 2000. This was another seminal document, setting out proposals that were manifestly designed to protect patients. Again, on the basis of that document, I would have said that the GMC had changed its culture. But again, implementation has been a disappointment; there has been a retreat from the early ideals. Revalidation was to involve the evaluation of the fitness to practise of every individual doctor who wished to hold a licence to practise. A method was devised and pilot studies were carried out. Then it became apparent that the task of evaluating every doctor every five years was more daunting than had been thought. The process would be expensive and the doctors would have to pay for it. Moreover, the proposals were unpopular with a powerful section of the profession. So the GMC retreated from its earlier vision and devised a system that it calls �revalidation� but which does not involve any evaluation of the individual doctor�s fitness to practise, certainly so far as GPs are concerned. I know that that retreat caused dissent within the GMC but it was accepted by the majority. I am driven to the conclusion that, for the majority of GMC members, the old culture of protecting the interests of doctors still lingers on.
27.301	It is not possible for me to understand the internal dynamics of the GMC. I can see from the transcripts of the public discussions in Council that there is sometimes a lively debate. That is, of course, as it should be. I do not know and cannot tell when or why the GMC takes some of its decisions. For example, in 2003, the GMC decided that, under the new FTP procedures, when a performance assessment report was obtained, it would be sent to the doctor�s employer or PCO. At some time, that decision has been reversed; it will not now happen. That is a retrograde decision but I do not know when or why it was taken. Similarly with the decision to allow FTP cases to be cancelled on the say-so of a single member of the IC, to which I referred at paragraphs 25.243-25.250. I do not know when or why that decision was taken. In short, I do not know what goes on but I do gain the impression that the old culture has not entirely disappeared.
27.302	Why then have I not recommended to the SoS that the GMC should no longer be responsible for the FTP procedures? In fact, I have recommended that responsibility for the adjudication stage should be hived off to an independent organisation. However, I have recommended that because it is inappropriate for the GMC to control both the investigation and the adjudication stages of the process. I would have made that recommendation even if there had been no suggestion that the GMC�s culture could be criticised. There are four reasons why I have not recommended that the GMC should cease to be responsible for the FTP function.
27.303	First, fitness to practise and revalidation are closely linked. Revalidation and registration are closely linked. It is preferable therefore that fitness to practise and registration should be under the control of the same body. I do not consider that my Terms of Reference permit me to consider whether the GMC might lose its responsibility for registration (or indeed for setting the standards for admission to the register and all the educational responsibilities that accompany that function). That would, in effect, be to recommend the abolition of the GMC. I could not do that. This is a Public Inquiry, not a Royal Commission on the regulation of the medical profession. If I were to recommend the detachment of the FTP function, it would create practical difficulties for the future, although I do not think they would be insurmountable.
27.304	Second, the task of creating a body to take over the FTP function would not be an easy one. If improvements to the GMC could be effected, so that it acted more consistently in the interests of patients and the public, that would seem to me to be a preferable course to take.
27.305	So far, I have given two reasons; both are negative. There are some positive reasons for my conclusion. The GMC has just introduced a new set of FTP procedures. I do not know how well they will operate in the interests of patient protection. Broadly speaking, the new procedures are an improvement on the old. Change has been in the right direction. No doubt the new procedures will be changed in some respects during the next few years in the light of experience. It seems to me to be sensible that the new procedures should be allowed to develop and to settle down before their adequacy and fitness for purpose is judged. It will be important to see whether any future changes move in the right direction.
27.306	There is a major reason to hope and expect that change for the better might continue. The CRHP/CHRE may be expected to play an important role in the further development of the new FTP procedures. The CRHP/CHRE is a new body; it came into existence in 2003 as the result of a recommendation of Professor (now Sir) Ian Kennedy in his Bristol Inquiry Report. The CRHP/CHRE has already made its mark by exercising its power to refer to the High Court any decision of the GMC which it considers to be unduly lenient and which should be reviewed in the public interest. It also has the power to refer to the High Court cases in which a doctor has been �acquitted� of SPM and it will in the future have the power, in some circumstances, to refer cases in which a FTP panel�s failure to find that a doctor�s fitness to practise was impaired, or its failure to find impairment of a degree justifying action on registration, was �unduly lenient�. However, the CRHP/CHRE�s powers are not limited to referring individual decisions to the Court. It has wide powers of oversight of the GMC�s FTP function. It can audit outcomes of cases; it can examine processes and it can require rule changes. That is not to say that the CRHP/CHRE could or should attempt to �manage� the GMC. That would be impractical and inappropriate. But the fact that it exists and that it has shown that it intends to use its powers will, I believe, have an important effect on the GMC. The GMC must know that, if it fails to act in the best interests of patients and the public, the CRHP/CHRE will intervene. Moreover, this Inquiry has shed a great deal of light on GMC practices, particularly on those that are not usually open to public scrutiny. I hope that what the Inquiry has revealed will help the CRHP/CHRE in that it will know where to look to see how well the GMC is doing its job.
27.307	The Inquiry has revealed many shortcomings in the GMC�s operation of its old FTP procedures. How the new procedures will operate in practice it is not possible to say. In my view it is important, in the public interest, that, in about three or four years� time, there should be a thorough review of the operation of the new procedures, to be carried out by an independent organisation. It seems to me that that task should be undertaken by or on the instructions of the CRHP/CHRE. The cost should, in my view, be borne by public funds. That review should not be limited to consideration of administrative systems, but should be empowered to examine casework decisions at all levels as well.
27.308	I would like to believe that the GMC�s culture would continue to change in the right direction by virtue of its own momentum. However, I do not feel confident that it will do so. I am sure that there are many people within the GMC, both members and staff, who want to see the regulation of the medical profession based on the principles of �patient-centred� medicine and public protection. Indeed, I think it is likely that all members are theoretically in favour of those principles. The problem seems to be that, when specific issues arise, opposing views are taken and, as in the past, the balance sometimes tips in favour of the interests of doctors.
27.309	In Chapter 15, I observed that, for an organisation like the GMC, issues are bound to arise in which there is a conflict between the interests of doctors and those of patients and of the public. Members have to deal with that conflict. To do their work properly as members of a regulatory body, they have to put the public interest first. That is very difficult for a member who depends for his/her position on an electorate of doctors. I am sure that some manage to do it. I think that others find it more difficult. At present, the GMC is effectively controlled by elected members. It seems to me that one of the fundamental problems for the GMC is the perception, shared by many doctors, that it is supposed to be �representing� them. It is not; it is regulating them. It may be that this perception goes back to the 1970s, when the profession objected to being asked to pay an annual retention fee and raised the cry of �no taxation without representation�. If the profession perceives that the GMC is supposed to represent it, that would explain why some GMC members tend to adopt a representative role. In fact, the medical profession has a very effective representative body in the BMA; it does not need - and should not have - two.
27.310	I have come to the conclusion that one of the reasons why the GMC has not been able to rid itself of the old culture lies within its constitution and the overall majority of elected �representative� members. I think that the GMC should look again at its constitution. I know that the constitution was changed as recently as July 2003. I realise that further upheaval would be unwelcome. However, my considered view is that it is not appropriate that the GMC should be dominated by elected members. It should certainly be dominated by medical members; I am not suggesting that there should be any increase in the proportion of lay members. But I do suggest that there should be more appointed medical members - people who are not beholden to an electorate and do not see themselves in the position of representatives of the profession. Rather, they should see themselves as servants of the public interest.
27.311	Accordingly, I recommend that the constitution be reconsidered. It occurs to me that the sharp reduction in size that occurred in 2003 might have gone a little too far. The GMC may wish to consider whether it needs a few more medical members than it has. It needs medical members for many tasks that cannot be carried out by lay people, such as the development of policies and medical guidance. That is not a recommendation, merely a suggestion. As Sir Donald Irvine observed, it may be preferable for the GMC to �hire� the medical expertise it needs from the experts in particular fields. What I do recommend, however, is that the balance of the Council should be changed so that the elected members do not have an overall majority.
27.312	I also recommend that medical and lay members who are to be appointed (by the Privy Council) should be selected for nomination to the Privy Council by the Public Appointments Commission following open competition. It would seem sensible for the universities and medical Royal Colleges to have the right to nominate medically qualified candidates for consideration. However, the competition should also be open to medically qualified persons who wish to put themselves forward. I have seen, from the DoH prospectus inviting applications for the position of lay membership in 2003, the emphasis that was laid - quite rightly - on the lay members� duty to safeguard the public interest. I would like to see the same emphasis on the public interest applied to the appointment of medical members.
27.313	During the course of the evidence, concern was expressed about the number of lay members who have a background in health service management. In Chapter 15, I expressed the view that it would be desirable that lay members should come from a wide range of backgrounds.
Public Accountability
27.314	In the past, the GMC has been accountable to the public only in very general terms. It has had a duty to regulate the medical profession in the best interests of patients and the public. However, there has been no person or body to whom the GMC has been directly accountable. Since 2003, the CRHP/CHRE has had the power to oversee and correct some aspects of the GMC�s work. The GMC itself recognised and drew the Inquiry�s attention to the fact that, although the GMC derives its powers from Parliament, it is not directly accountable to Parliament for the way in which it exercises its powers. The GMC suggested that it might be appropriate if it were to be directly accountable. I think that that is a good idea. I have in mind that the GMC would be required to publish an annual report of its activities, which could be scrutinised by a Select Committee. For this to be a worthwhile exercise, the report would have to contain specified categories of information, including statistical information, in a form that was readily understandable and, in effect, transparent.

The Availability of Information about Doctors

Print version

Conclusions

The Fitness to Practise Procedures

The General Medical Council�s Role in the Wider Regulatory Framework

Separation of Functions

The Statutory Tests

A New Route to Impairment of Fitness to Practise

Standards, Criteria and Thresholds

The Need

What Should Be Done?

Professor Baker�s Paper

An Alternative Approach: the Use of Case Summaries

The Way Forward

Standards in Relation to Performance Procedures

The Investigation Stage

The Preliminary Sift: the Test for Jurisdiction

Advising the Makers of an Allegation to Use Local Complaints Procedures

Preliminary Discussions and Disclosure to Employers and Primary Care Organisations

The Power to Direct Investigations

Case Examiners

Performance and Health Assessments

Criteria for Letters of Advice

The Issuing of Warnings at the Investigation Stage

The Procedure for Cancellation

Consensual Procedures

Revival of Allegations

Review of Investigation Stage Decisions

Voluntary Undertakings in Cases with a Health Element

Voluntary Undertakings in Cases with a Performance Element

The Adjudication Stage

Fitness to Practise Panels and Procedures at Panel Hearings

The Need for Supervision

Review Hearings

Applications for Restoration to the Register

Cases Involving Drug Abuse

Transparency

Revalidation

Recommendation Relating to the Council for Healthcare Regulatory Excellence

The Culture within the General Medical Council

Public Accountability