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GMC Fitness to Practise Consultation

Published: 26th November 2014

Below is CMF's response to the GMC's public consultation on changes to sanctions
guidance and on the role of apologies and warnings.
The original GMC consultation page can be viewed here.

Section 1: Changes to our sanctions guidance

Not being influenced by personal consequences of sanctions on doctors

Proposed change: where action is necessary to protect patients and maintain confidence in doctors we propose to guide panels to consider taking the appropriate action without being influenced by thepersonal consequences for the doctor?

1. Do you agree with this proposal?

No

Any consideration of action must surely take into account all the circumstances and consequences, for the patient and his family, the doctor and her practice, and public confidence in doctors in general. The personal consequences for the doctor should not override every other consideration, but neither should public confidence.

Taking action in all cases where a doctor's fitness to practise is impaired unless there are exceptional circumstances

Proposed change: to guide panels to consider taking action to maintain public confidence in doctors even when a doctor has remediated if the concerns are so serious or persistent that failure to take action would impact on public confidence in doctors.

2. Do you agree with this proposal?

Yes

Maintaining public confidence even when a doctor has remediated

Proposed change: to guide panels to consider taking action to maintain public confidence in doctors even when a doctor has remediated if the concerns are so serious or persistent that failure to take action would impact on public confidencein doctors.

3. Do you agree with this proposal?

No

If the doctor has done all she can to re-train and to adjust previous practice in the light of new knowledge, then no further action need be taken. Action should have as its first goal a remedial effect, not a punitive one. It is not appropriate to take disproportionate or draconian action against a specific doctor in an attempt to allay a general loss of confidence by the public.

Taking more serious action in specific cases

Proposed change: to guide panels to consider more serious action where cases involve a failure to raise concerns and, in the most serious cases, to remove or suspend doctors from the medical register tomaintain public confidence.

4. Do you agree with this proposal?

No

Healthcare is a team effort. The best care is secured when teams function effectively, supporting and encouraging each other and cultivating a climate of openness and honesty. Any proposal that makes it less likely that colleagues will confront their concerns face to face, but instead feel obliged to report one another, cannot be beneficial to teamwork. A climate of anxiety and insecurity will develop.

Clear procedures for addressing concerns within departments should be developed and followed in the first instance; only as a last resort should it be necessary to report a colleague, when repeated appeals have been ignored and it is clear that the colleague is not fit to practise.

A climate of 'too quick' reporting is to be avoided as much as one that sweeps concerns under the carpet. To threaten suspension for the doctor who 'fails' to report (though may have taken steps to address, confront, appeal etc) is draconian. Suspension should be limited to those who have failed morally or in their own clinical practise.

Failure to work collaboratively with colleagues

Proposed change: to guide panels they may consider more serious action where cases involve a failure to work collaboratively including bullying, sexual harassment or violence or risk to patient safety

5. Do you agree with this proposal?

Yes

Abuse of professional position

Proposed changes: to guide panels to consider removing doctors from the medical register when abuse of their professional position involves predatory behaviour towards a patient, particularly where the patient is vulnerable.

6. Do you agree with this proposal?

Yes

Discrimination against patients, colleagues and other people

Proposed change: to guide panels they may consider more serious action where cases involve discrimination against patients, colleagues or other people who share protected characteristics in any circumstance, either within or outside their professional life.

7. Do you agree with this proposal?

No

The example cited could be misleading. Dr Wrexham is entitled to his opinion about fertility treatment for same-sex couples; he is not entitled to make homophobic remarks. It is clearly possible to hold traditional views about sexuality, marriage and family life without being homophobic, but the example tends unhelpfully to suggest that the one implies the other.

Our concerns with this section centre around the definition and implementation of the term 'indirect discrimination'. Many of our members would choose to prescribe contraception only to married couples and/or might refuse to refer a lesbian couple for IVF treatment, because of their own convictions and beliefs, conscientiously held. GMC guidance makes clear that doctors are entitled to discuss their own beliefs with patients in a sensitive and appropriate manner. The same guidance recognizes their right to withdraw from certain practices or withhold certain treatments on the grounds of conscientious objection. These proposals threaten to cast the net too wide. Of course we do not want to see doctors abusing their positions of privilege, exploiting vulnerable people by imposing their own beliefs on them. But the document as it stands could catch a lot of things, and leave doctors vulnerable if patients are unhappy with their decisions and bring allegations of discrimination. Doctors exercising their right to conscientious objection to, for example, termination of pregnancy will feel under threat of devastating consequences if patients claim they are victims of discrimination. The effect on the doctors will be coercive - their own equality rights undermined.

Doctors' lives outside medicine

Proposed change: to guide panels to consider the factors which may lead to more serious action where the following issues arise in a doctor's personal life:

  • misconduct involving violence or offences of a sexual nature
  • concerns about their behaviour towards children or vulnerable adults
  • concerns about probity (being honest and trustworthy and acting with integrity)
  • misuse of alcohol or drugs leading to a criminal conviction or caution

8. Do you agree with this proposal?

No

As with question 7, the issue here is the interpretation of what is called 'unfair' discrimination. Beliefs that do not affect behaviour, both in private and public, are worthless. Doctors who profess Christian beliefs will hold convictions that may not always chime with the values of our post-Christian culture. In his private life a doctor may engage in writing or speaking about his views, defending them robustly. As long as he is neither disrespectful of other views nor intentionally incites hatred, then he is within his legal and moral rights. He should not be vulnerable to action by the GMC. He is not demonstrating discrimination, but integrity. However, he may be misrepresented, by those who hold different views, as bigoted, intolerant and discriminatory. It is possible for people to claim incitement to offence where none was intended. The wording of the provisions should clarify the nature and scope of tolerance and respect for the legitimate expression of personal beliefs.

Drug and alcohol misuse linked to misconduct or criminal offences

Proposed change: to guide panels that they may consider specific factors when deciding on the action to take in cases involving addiction or misuse of alcohol or drugs.
We take all issues relating to drug or alcohol misuse seriously. Some are more serious and have aggravating features and therefore would attract more serious outcomes. We believe panels should consider more serious action in cases involving the following factors:

  • intoxication in the workplace or while on duty
  • misuse of alcohol or drugs that has impacted on the doctor's clinical performance and caused serious harm to patients or put public safety at serious risk
  • misuse of alcohol or drugs that has resulted in violence, bullying or misconduct of a sexual nature
  • misuse of alcohol or drugs that led to a criminal conviction particularly where a custodial sentence was imposed.

9. Do you agree with this proposal?

Yes

Section 2: The role of apology and insight

The role of apology in our fitness to practise procedures

Issue to consider: should panels be able to require doctors to apologise where patients have been harmed.

10. Do you agree with this proposal?

No

An apology given only upon request does not seem to describe what is normally understood by an apology, namely an expression of genuine sorrow or regret freely and spontaneously given.

Where a doctor is aware that a patient in his care has been harmed, an apology should be immediately forthcoming for it to carry moral weight. Concerns about an apology being interpreted as an admission of guilt may discourage such a spontaneous response.What would be the medico-legal and medical indemnity implications of issuing such a 'required' apology?

Deciding whether a doctor has insight

Proposed change: to introduce more detailed guidance on the factors that indicate a doctor has or lacks insight.

  • A doctor is likely to have genuine insight if they: accept they should have behaved differently, consistently express insight,* take steps to remediate and apologise at an early stage before the hearing.
  • A doctor is likely to lack insight if they: refuse to apologise or accept their mistakes, do not consistently express insight, or fail to tell the truth during the hearing.
  • A doctor may also lack insight if they promise to remediate, but fail to take appropriate steps or only do so when prompted or immediatelybefore or during the hearing.

11. Do you agree with this proposal?

Yes

As above, for doctors to apologize freely or upon request they need to be assured that their legal standing will not be adversely affected as a result.

Stage of a doctor's UK medical career can affect insight

Proposed change: to guide panels they may consider the stage of a doctor's UK medical career as a mitigating factor, and whether they have gained insight once they have had an opportunity to reflect on how they might have done things differently, with the benefit of experience. However, in cases involving serious concerns about a doctor's performance or conduct (eg predatory behaviour to establish a relationship with a patient, or serious dishonesty), the stage of a doctor's medical career should not influence a panel's decision on whataction to take.

12. Do you agree with this proposal?

Yes

Where performance and conduct breach generally recognized moral values that are not culturally determined, panels should take action.

Verification checks on testimonials

Proposed change: to introduce a robust verification process to check the authenticity of testimonials before they are accepted as evidence in a hearing. This would involve checking the identity of anyone who has a written a testimonial to eliminate the possibility of fraud or misrepresentation. We also propose to check that those who write testimonials are aware of the concerns about the doctor, what their testimonials will be used for, and that they are willing to come to the hearing to answer any questions if a panel asks them to do so. To allow sufficient time for checks to take place, doctors will have to submit their testimonials before the hearing starts.

Deciding whether testimonials are relevant

Proposed change: to introduce guidance for panels on the factors they may consider when deciding whether testimonials are relevant to their decision:

  • whether the testimonial is relevant to the specific concerns about the doctor
  • the extent to which the views expressed in the testimonial are supported by other available evidence
  • how long the author has known the doctor
  • how recently the author has had experience of the doctor's behaviour or work
  • the relationship between the author and the doctor (eg a senior colleague)
  • whether there is any evidence that the author has a conflict of interest in providing thetestimonial (eg personal friendship).

13. If we introduce verification checks on testimonials, do you agree that we should continue to acceptthem as evidence?

Yes

The fact that a colleague might also have become a friend over many years of working together does not necessarily constitute a conflict of interests. Those working closely with the 'accused' over a period of time might be best placed to provide helpful testimonials, and it is to be expected that a measure of friendship will characterise the relationships of those who have collaborated on teams over many years. This should not automatically disqualify their eligibility to testify as long as account is taken of the friendship element.

14. Do you agree that we should use the factors above to decide whether testimonials are relevant tothe panel's decision?

Yes

With the above proviso, in 13.

Feedback from responsible officers

Proposed change: to make sure we routinely request a statement from a doctor's responsible officer during our investigation for the panel to consider at a hearing. The statement should set out the extent to which the doctor has reflected on the matter before the panel, the extent to which they have shown insight and how far any issues about their performance or behaviour have been addressed. The panel may wish to consider the extent to which any evidence of insight in testimonials provided on the doctor's behalf is supported by other available evidence, including the responsible officer's statement. We would also introduce guidance for panels to make sure doctors who do not have a responsible officer because they have given up their licence, or who are using alternative routes for revalidation, arenot treated unfavourably.

15. Do you agree with this proposal?

Yes

Section 3: Changes to our guidance on suspension

Deciding the length of suspension

Proposed change: to guide panels they may consider five key factors when deciding the length of suspension:

  • the risk to patient safety
  • the impact on public confidence in doctors
  • the seriousness of the concerns, and any mitigating or aggravating factors (as set out on the opposite page)
  • sending a message to the medical profession that standards must be upheld
  • ensuring the doctor has adequate time to remediate.
Panels may also wish to consider the time all parties may need to prepare for a review hearingif one is needed.

16. Do you agree with this proposal?

No

'Sending a message to the profession' should not be an influencing factor, nor the desire to reassure the public by making an example of a particular doctor's failings. The sanction applied by the panel should 'fit' the degree of culpability of the doctor concerned.

Suspending doctors with health issues

Proposed change: where concerns are solely about a doctor's health, to guide panels to consider suspending the doctor if this is required to protect patients or if the doctor fails to comply with anyrestrictions on their registration.

17. Do you agree with this proposal?

Yes

How can doctors keep their clinical skills up to date while they are suspended?

Proposed change: to provide guidance that suspended doctors should keep their clinical skills up to date by working in ways that do not allow them to be able to play any part in interactions with patients. This would still enable them to observe and later reflect on clinical care such as observing clinics related to their area of practice and of course byengaging in continuing professional development.

18. Do you agree with this proposal?

Yes

The example cited, however, is more serious because of the attempt to deceive. Keeping skills up to date should be accompanied by reflection and remorse shown for the moral failure and perhaps mention should be made of this in the case study.

The influence of previous interim orders

Issue to consider: whether panels should take account of previous interim suspension orders in a panel's sanction decision on suspension where actionis solely to uphold public confidence in doctors.
19. Where a panel suspends a doctor solely to uphold public confidence in doctors, should anyprevious interim order influence the panel's decision?

Yes

Public opinion can be fickle and easily whipped up by media campaigns and social media sites. We are concerned about the stress laid upon upholding public confidence and fear that an individual doctor might be treated with inappropriate severity in order to reassure the public.

Section 4: Giving patients a voice

Issue to consider: the benefits of meetings between doctors and patients where a doctor's actions haveseriously harmed a patient.
20. Do you think there are benefits to doctors and patients meeting where a patient has beenseriously harmed?

Yes

Section 5: Changes to our powers to give warnings

Issue to consider: how effective and proportionate is our current warnings system, when should we be able to issue warnings, and should more serious action be taken where there are repeat low level concerns that involve a serious departure fromGood medical practice?

21. Do you think warnings are an effective and proportionate means of dealing with low level concernswhich involve a significant departure from Good medical practice?

No

We think the current use of warnings fails to distinguish sufficiently between levels of concern that do not amount to impairment. We would like to see concerns of a very low level dealt with in a way that did not attach the stigma of a warning, particularly where the failing is not a clinical one.

Action to deal with misconduct

22 When do you think we should be able to give warnings?

a Not in any circumstances.
b Only to deal with low level concerns that involve a significant departure from Good medical
practice where a doctor's fitness to practise is not impaired.
c Only to deal with misconduct where a doctor's fitness to practise has been found impaired.
d To deal with low level concerns and misconduct (see b and c) if different terms are used todescribe them.

d - To deal with low level concerns and misconduct (see b and c) if different terms are used todescribe them.

23. If we continue to give warnings, do you agree that more serious action should be taken where thereare repeat low level concerns that involve a significant departure from Good medical practice?

Yes

We seem to need a 3-level response ability:
1. no 'warning' but an informal reprimand
2. a warning for clinical failure that falls short of impairment
3. degrees of suspension for serious failings that amount to impairment

24. How long do you think we should publish and disclose warnings issued in cases where the doctor'sfitness to practise is not impaired?

Issue guidance to case examiners and MPTS panels on determining length of publication on a case by case basis up to a maximum of five years. Indefinite disclosure to employers andresponsible officers.

For further information:

Philippa Taylor (CMF Head of Public Policy) 020 7234 9664
Steven Fouch (CMF Head of Communications) 020 7234 9668

Media Enquiries:

Alistair Thompson on 07970 162 225

About CMF:

Christian Medical Fellowship (CMF) was founded in 1949 and is an interdenominational organisation with over 4,000 British doctor members in all branches of medicine. A registered charity, it is linked to about 65 similar bodies in other countries throughout the world.

CMF exists to unite Christian doctors to pursue the highest ethical standards in Christian and professional life and to increase faith in Christ and acceptance of his ethical teaching.

Christian Medical Fellowship:
uniting & equipping Christian doctors & nurses
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