Annex A > Chapter 4 - National Accountabilities and Roles > National regulatory and professional bodies > Professional regulation - medicine: the GMC
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Professional regulation - medicine: the GMC
85 The GMC is concerned with the practice of medicine; the United Kingdom Central Council (UKCC) with nursing. Both have a statutory basis. The Inquiry received evidence as to the GMC's statutory powers and duties from Mr Finlay Scott, Chief Executive and Registrar of the GMC, who also detailed the statutory rules relating to the GMC's procedures in respect of the conduct, health and performance of doctors. [105]
86 Sir Donald Irvine gave details of the GMC's statutory responsibilities, committee structure, and disciplinary procedure. [106] Mr Scott told the Inquiry:
`The GMC licenses doctors to practise medicine in the United Kingdom and has four main functions:
`a. Keeping up-to-date registers of qualified doctors.
`b. Fostering good medical practice.
`c. Promoting high standards of medical education.
`d. Dealing firmly and fairly with doctors whose fitness to practise is in doubt on grounds of conduct, health or performance.' [107]
87 Only since 1997 has the GMC had its specific power to deal with doctors whose fitness to practise is in doubt on the ground of performance. [108]
The approach of the GMC
88 Sir Donald took the view that the primary responsibility for the quality of clinical care rested with individual clinicians:
`I am saying, in this paragraph, [109] how vital it is to recognise that for the patient the quality of the consultation and all that flows from that in terms of diagnosis and treatment is immensely dependent on the integrity and the ability of the doctor to try and get things right. Most decisions in medicine - not just general practice - are still taken in relative privacy. It is that recognition of that very fundamental fact that leads us, or has led us in the GMC, to place such an emphasis on the culture. You cannot supervise the millions and millions and millions of independent individual decisions that are made about, "Is it this treatment rather than that?", "Is it this pill?", "Do I do this now or at another time?", et cetera. So the whole system I am putting here has to be geared to trying to make sure that doctors get it right first time as often as possible, and conduct themselves in a way that patients find helpful and which they expect.' [110]
89 A principle underpinning the statutory functions of the GMC is that of self-regulation by doctors of doctors. Sir Donald supported the concept:
`... while I fully acknowledge that there is a demonstrable need for improvement, self-regulation does work. It is for the critics of self-regulation to convince - in sufficient detail, and on the basis of evidence not assertion - that an alternative would be more effective in protecting the public interest.' [111]
`Professional self-regulation is one element in the complicated relationship between the medical profession and society. For example, doctors working for the NHS are also accountable as employees and contractors. In a web of complex regulatory arrangements some tension is not only inevitable but healthy.' [112]
91 An important issue for the Inquiry is how the GMC conducted itself during the period of the Inquiry's Terms of Reference and of the respective responsibilities assumed by (and of) others, such as the Royal Colleges, the British Medical Association (BMA), and the employers of individual clinicians.
92 Throughout much of the period, according to Sir Donald, there had been
`... growing public concern about the way the General Medical Council (GMC) and the Royal Colleges have operated professional self-regulation. To many, these institutions have reflected more general attitudes in the profession and have appeared unduly protective of doctors rather than patients. They have been accused of being inward-looking, self-interested, unaccountable, ineffective, and increasingly at odds with public interest.' [113]
93 During the period, the GMC has tried, Sir Donald said, to make itself more patient-centred. There has been a trend, since at least 1984, towards increased lay representation on the GMC and its committees. [114] However, throughout the period under review the general culture was said to be one centred on practitioners rather than on patients. Sir Donald wrote that one outstanding problem was that:
`The culture within medicine and medical regulation was predominantly
doctor- rather than patient-oriented.' [115]
94 Within this culture, the GMC's approach was to set standards by giving generic advice and stating principles, and to supervise the conduct of doctors in response to complaints.
95 So far as the former is concerned, it was the evidence of Mr Scott that:
`The Committee on Standards of Professional Conduct and on Medical Ethics (the Standards Committee) formulates generic advice on standards of professional conduct and on medical ethics. The Standards Committee defines the principles which underlie good professional practice; applies them to new situations as the circumstances of medical practice change; and where necessary, recommends revised guidance to the Council.' [116]
96 It does not, therefore, lay down specific clinical guidelines for the treatment of particular conditions. It expects such guidelines to be set by the Royal Colleges.
97 Moreover, there are also other areas of clinical practice that the GMC avoided: it gave limited guidance on consent and other areas that it regarded as the responsibility of the courts:
`Throughout the 1980s and early 1990s the Council saw a clear distinction between areas governed by law - both common law and legislation - and questions of conduct and ethics. The GMC gave no guidance on matters which it believed were covered principally by law and would be dealt with in the courts. This is still the policy, but not every subject falls neatly into one category or the other.' [117]
98 Nevertheless, the GMC dealt (and deals) with some cases involving `consent' through its professional disciplinary procedures:
`... the Standards Committee has from time to time thought about whether guidance could be appropriately given, but the difficulties of disentangling the professional and the legal matters seemed at the time to be too difficult to handle, but that did not stop the Professional Conduct Committee considering individual complaints in individual cases.' [118]
99 The main mechanism available to the GMC with which to supervise doctors, to ensure fitness to practise, is and was its disciplinary procedures. These may result in a doctor's name being removed from the register. This does not in theory prevent a doctor from practising medicine as such, but has much the same practical effect, since he may not represent himself as a registered medical practitioner.
100 In the period covered by the Inquiry's Terms of Reference, a doctor could have his name removed from the register if found guilty, beyond a reasonable doubt, of `serious professional misconduct', upon a complaint to the GMC.
101 The `serious professional misconduct' standard is practitioner-centred; according to Sir Donald it may not accord with the patient's experience:
`... from a patient's point of view, there is a greater difficulty. Most patients do not start asking themselves with a complaint "Is this likely to be serious professional misconduct or not?", they want to know what to do and where to go and have the thing taken forward.' [119]
102 Four features of this regime were explored more fully in evidence: the impact of the word `serious' as qualifying `professional misconduct'; the burden of proof; the focus on his conduct rather than poor performance; and the fact that any system operating by complaint may be reactive rather than proactive.
103 There is no statutory definition of serious professional misconduct. However, the Privy Council in a case on appeal from the General Dental Council in 1987 (Doughty v GDC) [120] gave the following definition (subsequently confirmed in 1995 as applying equally to doctors in McCandless v GMC): [121]
`Conduct connected with his profession in which (the dentist) concerned has fallen short, by omission or commission, of the standards of conduct expected among (dentists) and that such falling short as is established should be serious.' [122]
`Serious'
104 The use of the adjective `serious' was accepted as too restrictive by Sir Donald. [123]
105 The impact of its use was explored in relation to a proposal for the future that contemplated replacing `serious professional misconduct' with `seriously deficient in performance' [124] or a `recognisable deficiency of performance'. [125]. The latter would require two matters to be distinguished according to Sir Donald: (i) the degree of deviation from good clinical practice and the degree of culpability in such falling short; and (ii) the evidential standard of proof required. He said:
`I was trying to disentangle the two elements here: what is serious deficiency from the standard of proof, the evidence that might be required to get to that point.' [126]
Burden of proof
106 Throughout the relevant period, the GMC not only had to be satisfied that the professional misconduct was `serious' but also that it had been established as such, beyond reasonable doubt.
107 The standard of proof is the same as that applied by the UKCC in respect of nurses. Concern was expressed by one witness, a nurse, that in both the GMC and UKCC, the criminal standard of proof, persisting only because of the serious consequences to a practitioner of being struck off, might lead to a feeling that doctors had the significant benefit of the doubt in a situation where patients' safety was involved, and that protection of the public needed to be seen as more central to regulatory proceedings. [127]
Misconduct rather than poor performance
108 `Professional misconduct' has resulted in the GMC's disciplinary procedures and guidance traditionally being employed in relation to a few narrow areas, such as sexual relations with patients and advertising (maintaining the probity and reputation of doctors). There have been changes in emphasis over the relevant period, which may reflect changes in the perceived role of the GMC. (Such changes over the period are demonstrated in particular by the change in emphasis from a greater focus on `disparagement' of a colleague to a recognition of the greater importance of the duty to notify others if a colleague's conduct is open to question. This change will be explored later in this chapter, once the evidence as to the analogous position of the UKCC in respect of discipline and standards has been reviewed.)
109 A consequence of the GMC's authority being limited to `serious professional misconduct' which had to be proved beyond reasonable doubt, was that it left the public exposed, as this exchange between Leading Counsel to the Inquiry and Sir Donald revealed:
`Q. So misconduct aside, the poor performer has never, between 1984 and 1995, been erased from the register on the grounds of poor performance alone?
`A. A number of doctors have been erased from the register where their performance has been so unsatisfactory as to constitute serious professional misconduct in the GMC's eyes. But of course you touch on a fundamental weakness in the fitness to practise procedures, which we recognised in that period and set about a strengthening of the procedures by having the Medical Performance Act. It gave us the power to look at a doctor's pattern of practice over a period of time, but the basic fact of the matter is that we became aware that where a doctor's practice was manifestly unsatisfactory, it was nevertheless very difficult to bring a charge of serious professional misconduct and make it stick. This left the public exposed.' [128]
Reactive rather than proactive
110 Sir Donald told the Inquiry that the GMC had been reactive rather than proactive:
`Q. ... the points which I think you would accept in respect of the way in which the GMC had a place in the regulatory framework from 1984 to 1995 are these: that first it was punitive rather than preventative; you have already accepted that?
`Q. Secondly, it was - it may be the same thing - reactive rather than proactive?
`A. Yes.' [129]
111 However, Sir Donald later qualified his statement:
`I should add, by the way, just in relation to the fitness to practise arrangements, you asked me if I agreed with you this morning that they were essentially punitive, and I said yes, and I do not actually agree with that. There is a punitive element to them, but of course they are primarily about maintaining the public interest and the safety of patients. I am sure you know that from the various matters that have been published. I would not like to leave you with that wrong impression.' [130]
112 Sir Donald stated that an outstanding problem was that:
`The GMC's fitness to practise procedures were complaints-driven; they were not designed for prevention.' [131]
113 Sir Donald told the Inquiry: `... you simply cannot get at a preventative strategy if one relies on a complaints-driven system alone' [132] and that:
`... my view is the more general one that I have put to you earlier - it is a personal one - that there is something inherently unsatisfactory in the way we are dependent on complaints for raising questions about poor practice.' [133]
114 The GMC's complaints-driven system was not even working as efficiently as its inherent limitations allowed, as Sir Donald said:
`Q. Do you think that [the considerable time-lag expected between complaint to the GMC and resolution] has operated over the last 20 years as a fetter upon people making complaints to the GMC?
`A. It has certainly been one of the factors which has deterred people.' [134]
115 However, the GMC, according to Sir Donald, has recognised the need for change and sees revalidation as the way forward. One of the trends since 1984 that Sir Donald Irvine identified is `a move from reactive to proactive regulation': [135]
`This seems to us to be the only sensible way of addressing the inherent weakness of any complaints-driven system, whether it is the GMC's or whether it is the NHS's arrangements, and that is actually of having a systematic on-going demonstration of fitness to practise.' [136]
Specific positive standards of professional conduct
116 As part of the trend from reactive to proactive, the GMC has changed the form of its standards from negative prohibitions to positive requirements.
117 The `Blue Book' [137] set, for the first time, positive standards that a doctor was required to adhere to:
`We have to go to the change in guidance in the 1985 Blue Book, page 10, and the reference there to "explicit clinical standards". That represented the first development of an explicit statement of expectation from a doctor, and as I referred to in an earlier response to you, that finds its way now into the current guidance. But it was more than that; it formed the basis against which charges of serious professional misconduct were framed and accounts for the substantial rise in the proportion of clinical cases which appeared before the Professional Conduct Committee'. [138]
118 Since 1995 the GMC has replaced the `Blue Book' with the package `Duties of a Doctor' [139] (consisting of `Good Medical Practice' and other booklets) [140] and `Maintaining Good Medical Practice'. [141]
Implicit to explicit standards
119 A parallel to the move from negatively to positively expressed standards has been the trend since 1984 for `a move from implicit to explicit professional and clinical standards'. [142]
120 Sir Donald told the Inquiry:
`Q. So far as the "thou wilt" part of it was concerned, standards tended to be unspoken rather than prescribed by the GMC, or for that matter by the Royal Colleges?
`A. That was the position in medicine as a whole, both in this country and elsewhere. Much of medicine, until the late 1980s, was based on implicit standards, the movement to explicit standards is relatively recent.' [143]
Content of standards regulated by the GMC
121 The change in form of standards from negative to positive also reflected a change in the content of the standards. Sir Donald identifies a principal philosophic change in the GMC's policies in 1984-1995 as not only:
`Adopting a role in fostering standards of good practice by defining the qualities and attributes of a good doctor rather than defining what would amount to serious professional misconduct' [144]
`a ... move towards regulating doctors' standards of practice and performance rather than a narrow concentration upon doctors' conduct and probity'. [145]
122 Annex D of Sir Donald's statement `The Development of GMC Policy on Professional Standards' explains the expansion and change in nature of the standards with which the GMC concerned itself. Poor performance had been peripheral to its concerns:
`In the early 1980s the guidance in [the "Blue Book"] made clear ... that the Council was not "ordinarily concerned with errors in diagnosis or treatment"'. [146]
123 The shift from a concentration on misconduct to include concerns with poor performance involved a shift in focus from isolated events to patterns of conduct:
`... there was the separate category where you knew there was a pattern of repeated poor practice, but none of it at any point, any of those incidents, sufficient that you could bring the conduct procedures to bear. That was the genesis of the performance procedures, to alter the evidential basis upon which one looked at a doctor's practice away from a single incident to a pattern of practice over time.' [147]
124 The new emphasis on performance required standards that were measurable, but an outstanding problem was that `Measurable clinical standards were few and far between...'. [148]
125 More recently, developments have included the introduction of the GMC's performance procedures by the Medical (Professional Performance) Act 1995, from 1 July 1997, [149] and the establishment of the GMC's Fitness to Practise Policy Committee in 1997. [150]
Response to criticism: constraints imposed by statute
126 The response to criticism of the GMC for supposed inaction and its slowness to reform is that the GMC has been constrained by statute:
`The relevant legislation both imposes duties upon, and extends powers to, the GMC. As a corollary, the GMC cannot act beyond those duties and powers.' [151]
`I think that some of the criticisms stem from a misunderstanding or lack of understanding or appreciation of precisely what the functions of the GMC are, and the framework within which it works, what it can and cannot do. ... That framework, then, we have to strictly adhere to. It gives us powers to act decisively in some areas, but it places considerable constraints particularly at the operational level where the Council's responsibilities do not run.' [152]
128 However, the approach of the UKCC may be contrasted with that of the GMC. It has adopted a more flexible and proactive approach to addressing day-to-day issues in trusts. Ms Mandie Lavin, Director of Professional Conduct, UKCC, told the Inquiry:
`I can think of many occasions where I have been directed to write to Directors of Nursing, most recently I think to a Chief Executive who wrote back to me and expressed his concern that the UKCC should have such a degree of interest in the day-to-day activities within his Trust. I assured him we were interested.' [153]
129 Sir Donald, however, told the Inquiry:
`You [the Trust] are the people who are employing the doctor, we [the GMC] are not, and it is not part of our statutory duty to do that monitoring.' [154]
`What I am saying is that, we have to operate within our framework. ... Our framework did not include the management of doctors at work. The relevant framework is giving advice on standards of practice and promulgating those standards, seeking to inform the culture of practice, particularly through the education system and that part which we are specifically responsible for, and acting on the basis of complaint when things appear to have gone wrong.' [155]
131 Its statutory powers appear to have inhibited the GMC from initiating investigations itself:
`Its statutory position, of course, is as you describe: the GMC activates or acts on the basis of a complaint. It has not scanned the media, et cetera ... that has not been part of the practice.' [156], [157]
132 Further, Sir Donald indicated that the GMC's previous response to its statutory framework had been more restrictive than it had to be:
`... within the statutory framework that I have described, we have been undergoing a considerable change of outlook ourselves which began, again, in the early 1990s, and that was effectively to see how far within the framework, the statutory framework as it was, we could be as effective as possible.' [158]
133 Some of the GMC's reticence went beyond that required by statute:
`Q. ... There would have been nothing, would there, in the statute to have stopped the GMC, had it wished to do so, having an individual who would write to the author of a media report saying, "You have said various critical things; do you wish to make a complaint?" Obviously you cannot act unless he does?
`A. That is absolutely true: there would have been nothing to stop that. The starting point for the Council is, was there a complaint? That is what the policy was and that is how it was operated.' [159]
134 The following exchange between Leading Counsel to the Inquiry and Sir Donald emphasises the point:
`Q. I want to ask you about a suggestion from her [Marilyn Rosenthal's] observation that the GMC was resisting enlargement of its own disciplinary responsibilities and would prefer to let the other mechanisms, that is the NHS authorities and the courts, deal particularly with medical malpractice and maloccurrence. As an historical [1987] snapshot, is it right or wrong?
`A. I think it was probably an accurate historical snapshot ... I think then that the translation from, as it were, one approach to a different approach took time.' [160]
135 Moreover, the view that the statutory framework in this area imposed a fetter on the activity of the GMC in this area may be contrasted with another area, in which the GMC interpreted its statutory powers more broadly:
`Q. ... The GMC inspects, does it, medical schools and those institutions where doctors are trained?
`A. The definition of the Act is rather narrower than that. I do not have the right words in front of me, but the essence is the inspection of the final qualifying examinations. That is interpreted as generously as the Act actually allows, as an enquiry as to the sufficiency of what has gone before that leads to that final examination. But it is not a formal power of accreditation.' [161]
136 Moreover, since the end of the period with which the Inquiry is concerned, the GMC has requested increases in its disciplinary powers:
`Orders for interim suspension or interim conditions may be made for up to six months but are renewable for up to three months at a time (until 1996, this power was limited to a single period of three months but, at our request, the power was increased).' [162]
137 Sir Donald circulated widely an explanation of the effects of The Medical Act 1983 (Amendment) Order 2000:
`Both Houses of Parliament have now approved the legislation we sought, to widen our powers. The Privy Council approved our new rules on 12 July 2000. The effects will be:
`To provide us with greater powers of interim suspension, and interim conditions on registration, exercised by a new Interim Orders Committee, on which there will be very strong lay representation.' [163]
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Footnotes
[105] WIT 0062 0002, 0022 Mr Scott. Mr Scott also includes a table of statutory amendments to the 1988 Procedure Rules: WIT 0062 0620
[106] For details of the GMC's processing of complaints and the disciplinary mechanisms, see T48 p.110-21 Sir Donald Irvine
[107] WIT 0062 0001 - 0002 Mr Scott
[108] The General Medical Council (Professional Performance) Rules Order of Council 1997 (SI 1997 No 1529) came into force on 1 July 1997
[109] WIT 0051 0014 Sir Donald Irvine
[110] T48 p.61-2 Sir Donald Irvine
[111] WIT 0051 0005 Sir Donald Irvine
[112] WIT 0051 0067 Sir Donald Irvine; `The Performance of Doctors. I: Professionalism and Self-regulation in a Changing World', `BMJ', 1997; 314:1540-2.
[113] WIT 0051 0061 Sir Donald Irvine, `Lancet', 1999; 353:1174-7
[114] See WIT 0062 0003 Mr Scott for membership of GMC; WIT 0062 0007 - 0008 for membership of the Standards Committee; WIT 0062 0010 for membership of the Education Committee; WIT 0062 0016 for membership of the Preliminary Proceedings Committee (PPC); WIT 0062 0018 for membership of the Professional Conduct Committee (PCC); and WIT 0062 0021 for membership of the Health Committee. Since 1984 the proportion of lay representation in all these memberships has increased with each change in composition (with the exception of the PPC, in which lay membership was reduced in 1996)
[115] WIT 0051 0006 Sir Donald Irvine
[116] WIT 0062 0007 Mr Scott
[117] WIT 0051 0076 Sir Donald Irvine
[118] T48 p.122 Sir Donald Irvine
[119] T48 p.22 Sir Donald Irvine
[120] [1988] AC 164; [1987] 3 WLR 769; [1987] 3 All ER 843 (PC)
[121] [1996] 7 Med LR 379 (PC)
[122] WIT 0062 0015 Mr Scott
[123] T48 p.22 Sir Donald Irvine
[124] WIT 0051 0007 Sir Donald Irvine; T48 p.74-5 Sir Donald Irvine
[125] T48 p.75 Sir Donald Irvine
[126] T48 p.76 Sir Donald Irvine
[127] T33 p.149-50 Ms Lavin and WIT 0052 0193; `The Regulation of Nurses, Midwives and Health Visitors', overview
[128] T48 p.12-13 Sir Donald Irvine
[129] T48 p.33-4 Sir Donald Irvine
[130] T48 p.81 Sir Donald Irvine
[131] WIT 0051 0006 Sir Donald Irvine
[132] T48 p.24 Sir Donald Irvine
[133] T48 p.116 Sir Donald Irvine
[134] T48 p.113 Sir Donald Irvine
[135] WIT 0051 0002 Sir Donald Irvine
[136] T48 p.78-9 Sir Donald Irvine
[137] The editions of the `Blue Book' current during the period of the Inquiry's Terms of Reference are at: WIT 0062 0127 (August 1983), WIT 0062 0145 (April 1985), WIT 0062 0165 (April 1987), WIT 0062 0183 (March 1989), WIT 0062 0201 (June 1990), WIT 0062 0220 (February 1991), WIT 0062 0239 (May 1992) and WIT 0062 0283 (December 1993)
[138] T48 p.69-70 Sir Donald Irvine
[139] WIT 0062 0008 Mr Scott. `Duties of a Doctor' is at WIT 0062 0305
[140] WIT 0062 0009 Mr Scott. WIT 0051 0007 Sir Donald Irvine. `Good Medical Practice' is at WIT 0062 0309 (October 1995 edition) and WIT 0062 0374 (July 1998 edition)
[141] WIT 0062 0009 Mr Scott. `Maintaining Good Medical Practice' is at WIT 0062 0398
[142] WIT 0051 0002 Sir Donald Irvine
[143] T48 p.34 Sir Donald Irvine
[144] WIT 0051 0007 Sir Donald Irvine
[145] WIT 0051 0002 Sir Donald Irvine
[146] WIT 0051 0074 Sir Donald Irvine
[147] T48 p.73 Sir Donald Irvine
[148] WIT 0051 0006 Sir Donald Irvine
[149] WIT 0062 0014 Mr Scott. The relevant statutory instrument (The General Medical Council (Professional Performance) Rules Order of Council 1997, SI 1997 No 1529) is at WIT 0062 0684 Mr Scott
[150] WIT 0062 0013 Mr Scott
[151] WIT 0051 0001 Sir Donald Irvine
[152] T48 p.10 Sir Donald Irvine
[154] T48 p.84 Sir Donald Irvine
[155] T48 p.28-9 Sir Donald Irvine
[156] T48 p.115 Sir Donald Irvine
[157] T48 p.132. Despite saying this, Sir Donald Irvine later said `that the [General Medical] Council does in fact scan the press and pursues matters at the material time. However, it did not scan "Private Eye" as a matter of fact.'
[158] T48 p.31 Sir Donald Irvine
[159] T48 p.115-16 Sir Donald Irvine
[160] T48 p.71-2 Sir Donald Irvine
[161] T48 p.105 Sir Donald Irvine
[162] WIT 0051 0134 Sir Donald Irvine; `Supplementary Evidence from the General Medical Council' (emphasis added)
[163] WIT 0051 0145; letter from Sir Donald Irvine, GMC President, to `chief executives, NHS Executive in England, Wales, Scotland and Northern Ireland; regional chairs and directors, NHS; chairs of CHCs; local health councils and directors of public health authorities; health boards; health and social services boards; chief executives and medical directors of NHS trust and independent hospitals', dated 13 July 2000 (emphasis added) Sir Donald Irvine