British Medical Journal: 24 February 2007
by Clare Dyer, legal correspondent
The General Medical Council will lose the right to decide whether doctors’ misconduct makes them unfit to practise in the biggest shake-up of medical regulation in the United Kingdom for 100 years.
The GMC will continue to set standards and investigate allegations of serious misconduct by doctors, but the right to adjudicate will pass to a separate body, probably an independent tribunal with legal, lay, and medical members.
The reform is outlined in a white paper on the regulation of doctors issued this week by the Department of Health. The paper envisages a smaller GMC, with equal numbers of lay and medical members, ending the era of professionally led regulation. Members of the GMC and the other health professions’ regulatory councils will be independently appointed by the Appointments Commission "to dispel the perception that councils are overly sympathetic to the professionals they regulate."
The GMC will have statutory responsibility for the oversight of education. GMC boards will cover undergraduate education and continuing professional development, and the Postgraduate Medical Education and Training Board will continue as the third. This arrangement will be reviewed in 2011 to see if "further integration is desirable."
Under the reforms, which build on Good Doctors, Safer Patients, a review in July 2006 by Liam Donaldson, the chief medical officer for England, doctors will have their skills and competence checked every five years. Doctors who fail the revalidation process will be expected to take further training.
The loss of the GMC’s role as adjudicator was accepted by the royal colleges and by the GMC itself. Graeme Catto, its president, cited "the difficulty of being seen or perceived to act as judge and jury." The council will also gain the right to appeal decisions that it regards as too lenient.
Most controversial for doctors is the proposed move from the criminal standard of proof-beyond reasonable doubt-to the lower civil standard-on the balance of probabilities- in fitness to practise cases.
The civil standard would operate on a sliding scale, with stronger evidence needed in the most serious cases, so the standard would be virtually indistinguishable from the criminal standard were a doctor’s livelihood threatened, the white paper said.
The move to a lower standard of proof was strongly opposed by the BMA and by doctors’ defence organisations the Medical Defence Union and the Medical Protection Society. Hugh Stewart, medicolegal adviser at the Medical Defence Union, said, "We are sceptical about the suggestion in the white paper that in some cases, the ‘sliding civil standard’ is virtually indistinguishable from the criminal standard. When a doctor’s whole career and livelihood is at stake, the allegations should be tested against the highest standard of proof."
The chairman of the BMA, James Johnson, said, "If a sliding scale of proof is to be introduced there must be a guarantee that for the most serious cases nothing less than proof beyond reasonable doubt will be employed."
Mr Johnson said that the proposals in the white paper as a whole "could lead to a climate of defensive medicine in which doctors are forever looking over their shoulders instead of concentrating on working in the best interest of their patients. Our concern is that under these white paper proposals, a doctor’s ability to continue working in this way, without fear of falling foul of political imperatives, will be jeopardised. "
The government published with the white paper its responses to a series of inquiries into medical scandals – involving the serial killer GP Harold Shipman; the bungling gynaecologist Richard Neale; and three doctors who were found guilty of sex abuse of patients over many years (Clifford Ayling, William Kerr, and Michael Haslam).
The proposals include better support for patients who register concerns, coordination of information from different sources, and more rigorous checks on references and qualifications when health professionals are recruited. A regional network of "GMC affiliates" would provide advice, support, and guidance to employers on local investigations and action to tackle concerns about doctors.
Rules to tighten the process surrounding death certification will also be introduced. Death certificates will be subject to independent scrutiny by medical examiners in hospitals and primary care trusts.
Ian Gilmore, president of the Royal College of Physicians, welcomed the white paper. He said, "Patients need to know that their doctor can treat them safely and to a high clinical standard-the new national framework will give both doctors and patients more confidence in the regulatory system."
The Department of Health said that proposals for the development of standards and testing methods for revalidation and secondary legislation to change the governance of the regulatory bodies would be implemented immediately. Changes which need primary legislation, such as setting up GMC affiliates and independent adjudication for fitness to practise cases will be allocated the earliest possible parliamentary time."
The three papers – Trust, Assurance and Safety:the Regulation of Health Professionals in the 21st Century; Learning from Tragedy: Keeping Patients Safe; and Safeguarding Patients – are available at www.dh.gov.uk.