Doctors overseeing Doctors – Are they effective Policemen ?

When doctors go bad or, at least seem to do so – who should investigate ?

Most members of the public assume an independent investigation is a given to ensure proper standards. In the UK it is the General Medical Council (GMC) that is endorsed with responsibility for the registration of doctors to practice medicine in the UK.

The Medical Act 1983 provides the current statutory basis for the General Medical Council’s functions. The Council is also bound by laws that implement a European directive on mutual recognition of professional qualifications from European Economic Area countries.

The purpose of the GMC is to protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine. Regulatory bodies should exercise a regulatory function, that is: imposing requirements, restrictions and conditions, setting standards in relation to any activity, and securing compliance, or enforcement.

After a complaint is received about a doctor and enquiries have been carried out, the GMC decides whether to refer the doctor to a Fitness to Practise Panel hearing with the Medical Practitioners Tribunal Service (MPTS)

It is the MPTS which runs hearings for doctors whose fitness to practise is called into question. The GMC is normally represented at the hearing by a barrister and the doctor is usually present and legally represented.

Parliament approved the establishment of the MPTS in 2011 and it was launched in June 2012. They are accountable to Parliament and to the GMC Council. The purpose of setting up the MPTS was to provide better separation between the GMC’s complaints and investigation functions and adjudication, and to take over responsibility for the day to day management of hearings, fitness to practice panelists and their decisions.

The MPTS are funded by the GMC .They are supposedly independent but are required to take account of the GMC’s guidance.

If the panel concludes that a doctor’s fitness to practise is impaired, it may:

• take no action
• accept undertakings offered by the doctor provided the panel is satisfied that such undertakings protect patients and the wider public interest
• place conditions on the doctor’s registration
•  suspend the doctor’s registration
• erase the doctor’s name from the Medical Register , so that they can no longer practise

If a panel concludes that the doctor’s fitness to practise is not impaired, it may issue a warning to the doctor. Those on the panel must be satisfied that any proposed sanction is sufficient to protect patients and the public interest.

However the GMC in their watchdog function have no direct right of appeal against the decisions made by the autonomous MPTS (Medical Practitioners Tribunal Service panels). Instead, they have to refer such cases to the Professional Standards Authority, which extends the process yet further, not only for patients and their families, but for the doctors concerned too.

The PSA “only refer decisions to court if there is no other effective means of protecting the public” (their words). This has meant that very few decisions to impose an additional sanction have ever been made.

These watchdog shortcomings have recently been exposed after two surgeons avoided being banned from the profession despite being involved in a botched operation where a pregnant woman died.

A decision was made not to suspend the two surgeons following serious errors which led to death of the woman after her ovary was removed instead of her appendix.  Both surgeons were found guilty of serious misconduct at the Medical Practitioners Tribunal Service after their behaviour was said to have put their patient at “unwarranted risk of harm” and “brought the profession into disrepute”. Both, however, were allowed to carry on practising.

Niall Dickson, the chief executive of the General Medical Council, called for a change in the law, so that the GMC can appeal directly to the High Court if it felt sanctions imposed by medical tribunals were too lenient.

The truth is – the whole system is in need of an overhaul to introduce a transparency that can engender confidence in the public. Headlines in which the GMC express such frustration at their inability to impact on self regulation do not help this.

The Law Commission recently spent three years reviewing the legal framework of health and care professional regulation with a brief to simplify and modernise it.  It is fair to say that its recommendations were not warmly greeted by the GMC.  However, unless regulation of the medical profession is seen by the public to be effective there is a danger that resorting to the Civil claims against professional will be seen as the only effective way of holding poor professionals to account.

Marcus Weatherby,  Personal Injury and Medical Negligence Solicitor