A letter from the GMC is a worrying prospect for any doctor, with many fearing that a fitness to practise investigation could spell the end of their careers. But in recent years the GMC has implemented reforms that have sped up the process and made it more proportionate. In doing so, they have sought expert insight from organisations like the MDU which, relying on our experience of supporting so many members with GMC investigations, has helped the GMC to understand the considerable impact its investigations have on doctors.
While this aspect of the MDU's work may not be as familiar to members as the medico-legal advice line or claims handling, the impetus is the same: to make a positive difference to doctors' professional lives. The MDU has strong professional relationships with all organisations whose decisions and procedures affect our members' working lives, such as the GMC, NHS England, the Ombudsman and CQC.
Our specialist knowledge and practical experience means we are seen as an authoritative voice on medico-legal issues for the profession. As acknowledged experts in our field we are listened to when we advocate change on your behalf, whether it is radical reform of clinical negligence law or because far too many doctors are investigated for gross negligence manslaughter.
As the head of advisory services, Dr Caroline Fryar is regularly involved in representing the interests of doctors, alongside her colleagues across the MDU. 'Medico-legal advisers play an active role in this work, as part of their day jobs,' she says. 'The advantage for members is that as medico-legal experts and doctors we understand and can put across the issues from a member's perspective. We share our experience across the department and often work with other MDU departments to identify what works well and not so well and to propose change. When we combine our expertise with the MDU's detailed knowledge of the law and the legislative processes, we make a forceful team.'
In many cases, advisers have particular interests, experience or specialist knowledge that they contribute, Caroline explains. 'For example, as one of our advisers with a particular interest in data protection, Dr Carol Chu has been working with the NHS Information Governance Alliance and others to contribute medico-legal input to GDPR guidance produced for the NHS before the law changed in May. Dr Catherine Wills uses her considerable knowledge of GMC guidance and FTP procedures to contribute to revisions of GMC guidance and consultations on changes to the FTP process, while Dr Ed Farnan has been focusing on the Healthcare Safety Investigation Branch since it started operating last year.'
Caroline herself is particularly proud of her role in highlighting to the GMC the effect that its FTP process has on doctors and suggesting ways it can improve its interactions with them. 'In 2016, with other MDU colleagues, I was invited to explain to up to 400 staff within the GMC investigations directorate what it's like for doctors who receive a complaint and are investigated, and I highlighted how alarming it is for most doctors to get a GMC complaint.
'Many were surprised to hear that members' number one fear on receiving a letter from the GMC is that they are going to be struck off. Even if we explain to our members that a complaint is relatively straightforward and unlikely to progress as it won't meet the threshold for a hearing, let alone erasure, most doctors don't see it that way and assume the worst.
'We had a universally positive response and hope our feedback about the impact of the FTP process has been useful to the GMC. Their changes in the last few years have really made a difference to members' experience'. She says simple things have made a real improvement, citing examples such as not sending out letters over the Christmas or other holiday period unless urgent, and changing the wording in FTP letters to be more user-friendly.
'In particular,' she continues, 'we welcome the work the GMC has done to make sure its procedures take account of doctors with health concerns. It aims to deal with these doctors sensitively and in a way that doesn't add to the already uncomfortable prospect of a GMC investigation. For example, we sometimes agree to be the first point of contact with the GMC for unwell members so we can feed developments back to the member in the most supportive way.
While this aspect of the MDU's work may not be as familiar to members as the medico-legal advice line or claims handling, the impetus is the same: to make a positive difference to doctors' professional lives.
In recent years, the MDU has been heavily involved in supporting the GMC's provisional enquiries initiative, to help it identify as early as possible cases that are, on the face of it, not going to amount to impaired fitness to practise, so they can be assessed quickly and, where appropriate, closed within a matter of weeks. 'We trawled our files and put forward suggestions of the sort of cases that might fall within the remit of provisional enquiries and had numerous meetings with the GMC from the planning stage onwards,' Caroline reveals.
'It's been really successful from our members' perspective because the number of complaints that reached a full-scale investigation has dropped by more than 35% in five years, according to the GMC's own statistics. Of course, members are never going to be happy to have a GMC complaint, but it's a huge improvement for doctors that these enquiries can take six weeks instead of six months to reach the same conclusion.'
But while the MDU is ready to work constructively with organisations like the GMC or NHS England to highlight inconsistencies or concerns about their approach or suggest improvements to disciplinary and complaints processes, Caroline is proud of the MDU's independent stance.
'Case by case, our absolute priority is defending our members,' she asserts. 'To that end, although we aim to influence high-level policy decisions that affect all our members, this goes side by side with our core work of defending individual members robustly using legal tools available to us if we believe they have been treated unfairly or unreasonably by the same organisations.
'For example in some cases we need to appeal or judicially review GMC decisions on behalf of members and earlier this year we successfully challenged the fairness and scope of the Ombudsman's procedure for investigating clinical complaints at the Court of Appeal, in a joint action with another MDO. We also assisted another GP member in a successful judicial review of the Ombudsman's decision to allow a complaint out of time.
Our experience in robustly representing members gives us the opportunity to identify things that need to change and means we can speak with authority when highlighting these concerns at a higher level,' she continues. 'It is important to take a stand on behalf of members whenever it is in their interests, whether that is using the power of the law or campaigning for change.'
The decision to advocate a particular change is based on the effect it has on members and whether it is an area in which the MDU has expertise. 'We don't get involved for PR reasons or to grab headlines,' Caroline explains. 'Issues like licencing cannabis oil or genetic testing are interesting to the profession, but they are predominantly clinical matters. We focus on matters that are of medico-legal importance to members and where we have the specialist knowledge or data to provide an informed and reasoned voice.'
A prime example of this is our long-standing campaign for fair compensation in clinical negligence cases. This has been informed and driven by the MDU's own experience of paying ever-increasing compensation awards on behalf of members, with annual claims inflation (a combination of claims frequency and size) at 10% for the past few years. The MDU believes it is unfair to expect doctors to bear these costs over which they have no control.
And the MDU has drawn on its UK claims expertise and knowledge of how claims are addressed in many other jurisdictions worldwide so it is ideally placed to propose a package of legal reforms to address the spiralling cost, including repeal of S2(4) of the Law Reform (Personal Injuries) Act 1948, which still requires all clinical negligence defendants to fund compensation on the basis it will be used for private, not NHS care.
I hope members will continue to get behind our efforts for legal reform because this affects them all and together they are a force to be reckoned with.
The MDU has been campaigning for reform of the clinical negligence procedure for many years and Caroline hopes a tipping point has now been reached as the strain on NHS finances - and by extension patient care - becomes more onerous and more widely recognised.
In the last 18 months there have been several positive developments, including investigations by the National Audit Office and the House of Commons Public Accounts Committee into the serious implications of spiralling negligence costs for NHS funding, and a new cross-government working group convened by the Department of Health and Social Care and the Ministry of Justice to look at all the legislative options.
The MDU contributed to these reviews and continues to highlight developments that show the urgency of the need to address claims costs; most recently NHS Resolution's annual report for 2017/18, which shows that the NHS spent a record £2.23 billion in 2017/18 compensating patients through its clinical negligence schemes.
'The MDU has been in the vanguard of raising awareness of the unsustainable cost of indemnity through our Fair Compensation and Save General Practice campaigns,' Caroline says. 'We have been working tirelessly to communicate our messages, for example in the media and directly to government, from briefings and articles, to videos. Recently our chief executive took part in a BBC Radio 4 discussion programme to highlight the threat to NHS care from the unsustainable cost of negligence claims.'
The MDU has also encouraged members to add their voice to the campaign by writing to their MP, taking part in surveys on how indemnity costs affect them and showing their support on social media. 'As a mutual organisation, we are as strong as our membership,' Caroline comments. 'I hope members will continue to get behind our efforts for legal reform because this affects them all and together they are a force to be reckoned with.
Caroline believes that trying to influence debate is consistent with the MDU's role as a mutual medical defence organisation. She points to the government's commitment to introducing state-backed indemnity for GPs, recognising the legitimate concerns about the unaffordable cost of indemnity for GPs raised by the MDU and others. There are also the recent high profile reviews into gross negligence manslaughter in healthcare, where the MDU used its unique experience as the only MDO with an in-house specialist criminal legal team to contribute detailed evidence.
'In our oral and written evidence to the Williams review we shared our experience, which is that the incidence of investigation and prosecution of clinicians is much too high. We also drew attention to the inordinate amount of time it takes to complete an investigation and reach a decision on prosecution,' she says.
'We were pleased to find many of our recommendations reflected in Sir Norman's final report and that they were accepted by the Secretary of State. We are now following this up as the changes proposed will help ensure greater fairness and consistency for doctors.
'Ultimately, the MDU exists to provide medico-legal support, assistance and robust representation for members,' she adds, 'whether it's giving medico-legal advice over the phone, supporting a member through a GMC investigation or championing improvements on their behalf when we get the opportunity. Our role is always to act in our members' best medico-legal interests.'
Interview by Susan Field.
Spheres of influence
Here are just a few of the important policy areas where the MDU is seeking to influence the medico-legal climate on behalf of members.
We gave evidence to the joint parliamentary committee that scrutinised the draft legislation to give statutory backing to the Healthcare Safety Investigation Branch (HSIB). The MDU is broadly supportive of the draft Bill having liaised with HSIB from the outset to understand how it conducts investigations in order to identify learning from them and to share it across the NHS to help improve patient safety.
We also support its remit to share best practice in the way investigations are carried out and hope it will lead to greater consistency across the NHS as that should improve things for members. Read an interview with the HSIB's chief investigator in the spring '18 MDU journal.
Medical negligence manslaughter
We gave oral and written evidence to the Williams Review about the impact of manslaughter investigations and suggested remedies, such as improving definitions of what constitutes gross negligence manslaughter and revised guidance for coroners who are currently responsible for passing most cases to the police for investigation. We also submitted written evidence to the GMC-commissioned Independent Review of Gross Negligence Manslaughter and Culpable Homicide, and will take part in workshops and other evidence sessions.
Fitness to practice investigations
The MDU assists the GMC to identify ways to enhance the speed and effectiveness of its FTP procedures and improve its early case management system. This is important because as the GMC increases its ability to identify doctors whose fitness to practise is not in question, it will be in a better position to close cases where the doctor is not a concern and will not need a formal investigation. We also responded to a Department of Health consultation calling for the repeal of inflexible legislation that hampers the GMC's efforts to reform and modernise.
The spiralling cost of clinical negligence claims
Our Fair Compensation and Save General Practice campaigns have raised awareness of the implication of claims inflation for healthcare services and advocated urgent and radical legal reforms. We contributed to inquiries by the National Audit Office and the House of Commons Public Accounts Committee into the cost of clinical negligence which called for a coherent government response, and we continue to raise the issue with government at every opportunity.
We also contributed to several consultations into fixed legal costs and called for substantial reform of the way the discount rate is calculated, because it has dramatically inflated the cost of clinical negligence and other personal injury claims.
If you would like to know more about the work the MDU does to influence others on your behalf, visit our dedicated webpage.
Dr Caroline Fryar MBChB LLM MRCGP DCH DRCOG
Head of medico-legal advisory services
Caroline studied medicine at the University of Sheffield then worked as a GP in Cheshire before joining the MDU in 2006. Whilst working at the MDU, Caroline obtained her LLM in Legal Aspects of Medical Practice and is currently studying for an MBA.
See more by Dr Caroline Fryar MBChB LLM MRCGP DCH DRCOG