Appropriate measures

WHEN things go wrong a doctor should have a right to explain why and learn from those mistakes – and mitigating factors should be considered in any fair process. However, the GMC believes that doctors and patients want to see stronger action and tougher sanctions when patients are harmed. A recent GMC consultation on changes to the sanctions guidance closed in November 2014. In the consultation document, the GMC states that: “A doctor’s findings may be so serious or persistent that, even if they have fully remediated the concerns, the public may find it difficult to accept that no action is taken”. Is it fair to judge a doctor by what the public may find acceptable? Some would suggest that this is akin to subjecting doctors to flogging by public opinion.

Indicative sanctions guidance

In guiding the regulator as to what sanctions to take against doctors who face fitness to practise hearings and to ensure that the decisions taken by the Medical Practitioners Tribunal Service (MPTS) panels are fair, transparent and consistent, the GMC developed the Indicative Sanctions Guidance which evolved following the Shipman, Neal and Ayling inquiries. The GMC is now influenced by the Francis report following the Mid- Staffordshire inquiry which is resonant in the current consultation. The status of the current Indicative Sanctions Guidance is for MPTS panels to consider the following questions:

• How serious are the allegations?
• Is there a need to protect the public from further harm?
• Has a doctor undermined confidence in the profession?
• Is the doctor suitable to work in future?
• Has the doctor shown insight?
• Has the doctor undertaken remediation steps?
• Are there any mitigating or aggravating factors for the doctor’s behaviour?
• What is a proportionate response?

In the current consultation – Reviewing how we deal with concerns about doctors – there are 24 proposals. The most significant of those are considered here as they cause concern to lawyers who defend doctors at the GMC.

Look forward, not back

One of the most effective ways in defending a doctor is to show remediation such that a doctor recognises their own failings and has addressed any shortcomings in their practice, for example by retraining in an area and demonstrating that they do not pose a risk to future patients. An established line of case law confirms that the GMC should look forward, not back, and should not discipline a doctor for past misconduct where the doctor has fully remediated and the risk of recurrence has been removed. However, a proposed change is for the GMC to take action “even where the doctor has remediated if the concern was so serious or persistent that failure to take action would impact on public confidence in doctors” (Proposal 3).

It was established in the case of Raschid and Fatnani v The GMC (2007) that the function of the panel is quite different from that of a court imposing retributive punishment. The panel is centrally concerned with the reputation or standing of the profession rather than punishment of the doctor. It is important, therefore, that any proposed changes to the sanctions guidance comply with these authorities, and that the GMC is not simply punishing doctors because the public wants to see tougher sanctions. Who determines what the public considers is acceptable in terms of confidence in the medical profession? Is the media influencing what should properly be left to a fair legal process where the full evidence is considered and tested, and an appropriately trained tribunal applies the law?

Proportionality

Another proposal (Proposal 1) in the consultation is for the panel “to consider taking appropriate action without being influenced by the personal consequences for the doctor”. Procedural fairness should afford the doctor not only an opportunity to explain the circumstances surrounding the actions taken at the time, but also in determining the appropriate sanction according to the personal situation of the doctor now.

To remove consideration of the doctor’s personal circumstances is inconsistent with proportionality, a fundamental principle of human rights law, which the current Indicative Sanctions Guidance enshrines – weighing the interests of the public with those of the practitioner. The panel should consider the sanctions available and start with the least restrictive.

Panels have historically looked at aggravating and mitigating factors when considering sanction. Mitigation can include not only evidence of the circumstances leading up to the incident but also the character and previous history of the doctor. Doctors have relied on testimonial evidence showing good character either in writing or by character witnesses being permitted to address the panel in person. Proposal 13 calls for the GMC to introduce robust verification processes to check the authenticity of testimonials, and to ensure that those who write the testimonials are aware of the concerns about the doctor – which should be a pre-requisite for a testimonial in any event.

However, it is Proposal 14 that causes concern as it suggests that a panel (rather than the doctor) can decide whether a testimonial is relevant to their decision. The panel may decide to exclude testimonial evidence by considering the relationship between the author and the doctor and how long they have known each other. It can be the case that professional colleagues are also personal friends, and the panel can now exclude evidence of good character on the basis that personal friendship constitutes a conflict of interest.

Failure to report colleagues

The Francis inquiry has influenced Proposal 4 which envisages more serious sanctions where doctors have failed to raise concerns about a colleague where they may present a risk of harm to patients. The updated version of Good Medical Practice introduces a duty to take prompt action where a doctor considers that patient safety, dignity or comfort is or may be seriously compromised. The proposed change is to not only consider a more serious sanction, but to remove or suspend doctors from the medical register in the most serious cases if they fail to whistleblow.

Failure to apologise and evidence of lack of insight

It has always been part of Good Medical Practice that doctors “must be open and honest with patients when things go wrong and offer an apology when a patient under their care suffers harm or distress”. Proposal 11 would allow a panel to decide whether to require doctors to apologise where patients have been harmed. The consultation document suggests that an apology may be considered evidence of insight as part of the process for monitoring a doctor’s progress with remediation, yet it goes on to state: “...where a patient has been harmed as a result of a doctor’s actions or omissions, a doctor’s failure to apologise is evidence that they lack insight ...This change would allow panels to hold doctors to account where they fail to apologise for harms caused to a patient, and increase consistency in our decision making when considering the role of insight”.

Apologising at an early stage can reduce the risk of legal action by dissipating anger and upset, knowing that the doctor is genuinely sorry. Guidance from the NHS Litigation Authority confirms that an apology is not an admission of liability; a concern that some doctors have about apologising. Guidance in Good Medical Practice states that an apology should be offered, but it is more important that the doctor explains fully and promptly what’s happened, and what are likely to be the effects in both the short and long term.

Motives for change

So why has the GMC embarked upon this reform of sanctions guidance? There is political motive for the GMC being seen to be tougher. For example, in 2012 the GMC received 10,347 enquiries, 60 per cent of which were closed at triage with no further action. Only 10 per cent were referred on to a fitness to practise panel, and 26 per cent of those resulted in erasure. The GMC is grappling with media and public perception that doctors have been “getting away with it” and that the regulator may be losing political powers to the CQC.

Dr Clare Gerada, formerly Chair of the RCGP and currently Chair of the Clinical Board, Primary Care Transformation, NHS England, has expressed concerns that tougher sanctions in some cases could “traumatise and put in additional fear for the vast majority of doctors who go in every day to do a good job”. She added: “Thousands of doctors are being referred to the GMC... they sometimes lose their livelihood... in some cases, they take their life”.

Doctors are already under enormous pressures particularly with the recent government pledge for GP surgeries to be open seven days a week. The threat of tougher sanctions by public pressure will surely add to the burden at a time when we need to encourage, not discourage, people to enter and to remain in the profession.

Joanna Bower is an associate at Capsticks Solicitors LLP