Doctors and other healthcare professionals have had a torrid time of late. After working extremely hard to care for patients during a deadly pandemic, sometimes at great personal cost, they now find themselves facing the possibility of criticism for resource limitations in the health service that are outside their control.
A survey of more than 1,200 doctors earlier this year by the MDU and GP Online found that two thirds of respondents worried about receiving a complaint related to the pandemic, and many fear there will be a rise in complaints to the GMC as well. In our experience, the mere prospect of a GMC fitness to practise investigation can cause real anguish for members, even though only a few ever result in a hearing before the Medical Practitioners Tribunal Service (MPTS).
As a 'doctors for doctors' organisation, we recognise how distressing a GMC inquiry can be. But more importantly so too does the GMC, which has made efforts in recent years to make its fitness to practise procedures faster, fairer and less adversarial by, for example, the introduction of provisional inquiries, consensual disposal of cases and the introduction of case examiners.
The government has recognised that a radical overhaul of the regulatory regime for health professionals is both necessary and long overdue
However, the GMC has itself been constrained by outdated legislation - the 1983 Medical Act - which effectively preserved the bulk of its procedures in aspic. It simply doesn't have the flexibility to conclude cases swiftly when it was safe and proportionate to do so. This meant both doctors and complainants endured procedures that were sometimes more drawn-out than necessary and less humane than they could be.
The excellent news is that the government has recognised that a radical overhaul of the regulatory regime for health professionals is both necessary and long overdue, and has now made a serious declaration of intent. Its weighty consultation, Regulating healthcare professionals, protecting the public, concluded on 16 June and contained a series of proposals to modernise the GMC, GDC et al, giving them greater autonomy in four areas: governance and operating framework, education and training, registration, and most importantly, fitness to practise.
There is much here that the MDU supports – indeed, much that we have advocated for many years on behalf of our members is included. Most significant is the creation of a three-tier fitness to practise process comprising initial assessment, examiner stage and panel hearing. This should allow more cases to be appropriately resolved at an earlier stage, without in any way detracting from the GMC's responsibility for protecting patients.
For the new structure to work we agree that case examiners will need a full range of measures available to them to conclude cases, including through the accepted outcome process. And it follows there should be sufficient oversight of fitness to practise decisions via the GMC's proposed 'registrar review' power. It is also sensible to remove the GMC's ability to appeal decisions by the Medical Practitioners Tribunal Service (MPTS), as recommended by the Williams Review. It was always anomalous for both the GMC and the Professional Standards Authority to have the power to challenge the MPTS.
But while we wholly support the new fitness to practice model in principle, the devil will be in the detail. As an organisation with vast experience of the practicalities of the fitness to practise process (representing doctors and dentists), the MDU is ideally placed to look beyond the theory and say what will work - and what won't - in practice. In particular, there are two proposals that have the potential to undermine the overall objective of a faster, fairer and more proportionate procedure.
First is removing health as a category of impairment and giving regulators only two grounds for action in fitness to practise cases: lack of competence and misconduct. Even if most health concerns are addressed outside the formal process, there will inevitably be some cases where a doctor's health gives rise to concerns that their fitness to practise is impaired.
If these health cases are recategorized under the banner of 'lack of competence', the GMC could be obliged to disregard measures that had helped support unwell doctors through the process. And the terminology will only add to the distress for any doctor who is struggling with their physical or mental health under the strain of an investigation.
The second proposal is to scrap the 'five-year rule' on the incorrect premise that it prevents the GMC acting on allegations that are more than five years old. In fact, the GMC can still investigate these allegations if it is in the public interest, taking into account factors such as the gravity of the allegation, the extent of any continuing unwarranted risk to the public and/or to public confidence, and the potential for a fair hearing based on available evidence.
In this context, the five-year rule is a useful filter that ensures the fitness to practise process is focused on whether a doctor's practice is currently impaired and if conditions are required on their registration to protect patients. Without it, there is a risk that doctors will be routinely and needlessly subjected to fitness to practise proceedings for historic complaints.
We all want a regulatory system that is fair to doctors and protects patients, and there is every reason to work together to achieve this.
We hope these concerns will be addressed when draft legislation is brought forward later this year. After such a long wait, we are very encouraged by the government committing to a timescale that could see the GMC granted its new powers by spring 2022. We are seeing real progress towards a regulator that protects the public while dealing with doctors fairly and humanely, but of course there is still work to do to ensure this promise is fully realised
Throughout this process of reform, the MDU will keep it under scrutiny, engaging with the GMC where it is in the interests of members, supporting measures that are workable and proportionate, and providing constructive feedback where we believe things could be better. We all want a regulatory system that is fair to doctors and protects patients, and there is every reason to work together to achieve this.
Looking back over my years at the MDU, I have witnessed the damage an inflexible and inhumane regulatory system can have on vulnerable members and those close to them. I hope and believe that many of the suggestions the MDU has made over the years have helped shape a more progressive approach to regulation by the GMC.
To be in a position to improve things for members is an enormous privilege, and we will always keep working to do so on your behalf.