Council
11 September 2002
3e
To consider
Fitness to Practise Rules Issue
1. To make and approve changes to the fitness to practise rules. Recommendations
2. a. To agree that the Registrar should have the power to refer direct to the Professional Conduct Committee (PCC) any case where the courts imposed a custodial sentence on the doctor, and a duty to refer other convictions (other than minor motoring offences) to a medical screener (paragraphs 7-15). b. To make and approve the Fitness to Practise Committees Amendment Rules (paragraphs 16-23).
Further information
3. Isabel Nisbet 020 7915 3575 (email: [email protected]) Alan Howes 020 7915 3572 (email: ahowes@gmc-uk,org) Paul Buckley 020 7915 3654 (email: pbuckley@ gmc-uk.org)
Background
4. Council agreed in May 2002 that we should consult on a package of changes to the fitness to practise rules. The proposed changes were consistent with the direction of the proposals in the fitness to practise review (the most important of which require primary legislation and are contained in the draft Section 60 Order). 5. The primary purpose of the changes on which we consulted is, by removing processes that do not add value, to make it easier to resolve cases more quickly, to everyone’s benefit. They were as follows:
a. Allowing interim orders imposed by the Interim Orders Committee (IOC) to be renewed without a hearing in certain uncontested cases. b. Re-formulating the conduct screening test to make it more understandable.
b. Improving the screening of performance cases by combining two of the stages into one.
c. Reduction of panel quorums to three. No case would start without five members, but if one or more of those members dropped out the case could still continue. In practice, the change would be applied in respect of the PCC (where the risk of a member dropping out is higher because of the length of cases.)
d. Abolishing the requirement for members of the public to provide sworn statements in support of complaints.
e. Abolishing the health 'panel of six'.
f. Enabling the Registrar to refer certain convictions direct to the PCC. g. Enabling the GMC to make a tape recording of fitness to practise hearings as an alternative to the current requirement to make a shorthand note.
h. Other minor changes to tidy up errors or omissions in relation to the existing procedure rules.
6. It was also agreed that the Fitness to Practise Policy Committee (FPPC) should oversee further work on two of the above proposals - the re-formulation of the screening test and the referral of certain convictions to the PCC - before we
consulted on them. This work was carried forward during the early part of June 2002, and included a meeting with Counsel and discussions involving the screeners and the PPC. As a result of these contributions, for which FPPC was very grateful, we were able to work up proposals for inclusion in the consultation document which was issued on 28 June 2002. We requested responses by 2 August 2002.
Council members were sent a copy of the consultation paper. A list of the other consultees is at Annex A. Responses were received from consultees indicated with an asterisk (*).
Discussion
7. Most of the proposals were broadly supported by most respondents. Some attracted particular comment
Referral of certain convictions direct to the PCC by the Registrar
8. There was near universal support for the principle that the Registrar should be able to refer certain convictions direct to the PCC. It was recognised that there is a proportion of cases where the involvement of the screener and the Preliminary Proceedings Committee (PPC) can add no value. It is important to emphasise that this is an issue about process, not about outcome. Many convictions should continue to be referred to the PCC, as they are now. The question is whether they are
referred directly by the Registrar, or whether they should be considered by the screener and then by the PPC. And if a conviction case were referred direct to the PCC it would be for the PCC to consider what action, if any, to take in the light of all the circumstances and the options open to it. Those options would include referring the matter to the Health Committee.
9. FPPC had decided that we should consult on two options:
a. Option 1. Under Option 1, the GMC would maintain a list of generic types of offence (for example, indecent assault or behaviour) and the
Registrar would normally be required to refer a case on the list direct to PCC (except in wholly exceptional circumstances such as if the doctor were
terminally ill).
b. Option 2. Under Option 2, every conviction other than minor motoring convictions would be referred direct to the PCC unless the doctor’s health appeared to be seriously impaired by a physical or mental condition, in which case the Registrar would refer the matter to the medical screener. (The screener would in turn refer the case either to the health screener or to the PPC. )
10. Opinion was evenly divided between the two options. Supporters of Option 1 felt that Option 2 would be too blunt an instrument, leading to inappropriate referrals to the PCC. But some supporters of Option 2 regarded Option 1 as inherently flawed and argued that no generally agreed list of offences 1 could be compiled, especially given that there are different legal systems within the UK each with their own
terminology.
11. Option 1 is unattractive: It does not seem possible to compile a satisfactory list of generic offences.
12. Option 2 fails the test of proportionality. And we should avoid adding to the already heavy burdens of the PCC (and, in future, the Fitness to Practise Panel) if we can.
A modified proposal
13. Against that background we propose a modified version that seeks to
incorporate the best features of Options 1 and 2. Under it, the Registrar would have the power to refer any criminal conviction to PCC if a custodial sentence (not merely a suspended term of imprisonment) had been imposed. By definition these would be cases where the court, having heard all the evidence, regarded a severe penalty as being appropriate.
14. But even in such a case the Registrar would have the discretion to refer to the medical screener instead of to PCC if it appeared to him that direct referral to PCC might not be in the public interest (for example, if it appeared that the doctor’s fitness to practise was impaired by a physical or mental condition). The Registrar would not seek observations before making his decision. Following the imposition of a custodial sentence it would be for the doctor or his representatives (in the certain knowledge that the matter would be referred to the GMC) to submit any representations they wished to make on the question of direct referral to the PCC so that the Registrar could take them into account.
15. These arrangements, which for the sake of maximum clarity will be set out explicitly in the rules themselves, will mean that in future a conviction, depending on its nature, will be dealt with in one of the following ways at the initial stages:
a. The Registrar will continue to close minor motoring convictions with no action taken against the doctor.
b. The Registrar will have the power to refer direct to the PCC any case where a custodial sentence was imposed, but a discretion to refer such a case to the medical screener if he considers that direct referral to the PCC would not be in the public interest.
c. The Registrar will have a duty to refer any other conviction to the medical screener.
Recommendation: To agree that the Registrar should have the power to refer direct to the PCC any case where the courts imposed a custodial
sentence on the doctor, and a duty to refer other convictions (other than minor motoring offences) to a medical screener.
Abolition of requirement for sworn statement
16. This proposal was strongly supported by patient and consumer organisations, but organisations representing doctors’ interests expressed reservations. There were concerns that this proposed change would increase the risk of malicious complaints being taken forward.
17. These concerns are understandable, but we do not expect them to be
realised. Experience over many years demonstrates that – unfortunately – the need to produce a sworn statement does not deter those who are determined to make a trivial or malicious complaint, but may deter some legitimate complainants. The most effective way of identifying malicious complaints at the initial stages is to have a rigorous process for scrutinising incoming complaints.
18. We have become far more effective at this in recent years and currently some 45% of complaints – including a proportion of the manifestly malicious or vexatious - are promptly screened out by the Office. If a complaint passes through to the later stages of the procedures a complainant will be required to provide evidence under oath, and that requirement will remain in place. The problem has been the practical and symbolic effect of placing that requirement at the start of the process.
19. Some of the defence societies suggested that as an alternative to a sworn statement, a complainant could be required to make a Statement of Truth (which is now used in civil proceedings). This does not seem a practicable way forward because:
a. It would not deter a malicious complaint, any more than does a sworn statement.
b. Equity would require that everyone involved in the procedures
(including doctors commenting on complaints about them and persons acting in a public capacity) would also have to append a Statement of Truth to every communication with us. It would quickly become a formulaic and even
meaningless piece of process but which, if overlooked, would lead to delay and nugatory transactions.
20. The proposal to abolish the need for a sworn statement looks soundly-based. Nevertheless, in view of the concerns expressed by some consultees, we propose that the effect of the rule change should be evaluated after a period of two years. If there were any evidence of an increase in the number of malicious or vexatious complaints progressing beyond the initial stages of the procedures, we would need to explore options for tackling the problem, which would include the suggestions made by some of the defence organisations.
Time limit for making complaints
21. With one exception, consultees supported the proposal that there should normally be a time limit (running from the date of the events) for making a complaint to the GMC subject to a discretion to waive the time-limit where this was in the public interest). However, a majority supported a time-limit of three years rather than five. Council had previously considered but rejected a time-limit of three years and no new arguments were raised which Council had not already considered.
22. It was encouraging that the proposal received such general support. We consider that we should implement a time limit of five years as proposed, to be reviewed in the light of experience.
Quorum of committees
23. Few concerns were raised about the proposal to reduce the legal quorum to three members (subject to the conditions described at paragraph 5.c, above). It was suggested by one respondent organisation that there should be a minimum of two doctors of whom one from the speciality of the doctor concerned. This is fully in line with the principle agreed by Council in May 2002 that where clinical issues are at the heart of the case the panel should include an appropriate proportion of medical members.
Recommendation: To make and approve the Fitness to Practise Committees Amendment Rules.
Next steps
24. At the time of preparing this Council paper we are in discussion with the Department of Health about some outstanding technical points regarding the drafting of the rules. The latest version is at Annex B, but it is likely that we will need to make some minor adjustments to it before inviting Council to make and approve the rules. We will table a definitive final draft at the Council meeting on 11 September 2002 and explain any changes from the version at Annex B. Following the approval of the rules by Privy Council we plan to bring them into effect as soon as possible.
Resource implications
25. There will be some costs associated with implementing the changes although these are estimated at less than £1,000. These costs will be off-set many times over by the savings (including in member and staff time) which the changes will enable. Charitable status
26. This paper's recommendations are compatible with charitable status and with charity law.
Annex A Fitness to Practise Rules 2002: List of Consultees
Association of CHCs for England and Wales British Medical Association*
Consumers Association* Department of Health*
Department of Health and Social Services and public safety for Northern Ireland Field Fisher Waterhouse*
Medical Defence Union*
Medical and Dental Defence Union of Scotland* Medical Protection Society*
Mills and Reeve, solicitors* Patients’ Association Privy Council Office
Scottish Association of Health Councils* Scottish Executive
Welsh Assembly*
