Fitness-to-practise investigations make sick doctors sicker
The GMC’s own publications reveal the costly fitness to practise system casts a deep shadow over increasingly large numbers of doctors and is not justified by the outcomes of the vast majority of investigations. Drs Christopher Lees and Hilarie Williams suggest that, rather than extend the GMC’s current scope, it is time to re-evaluate its role.
The General Medical Council spends over £90 million annually1 derived from mandatory fees for doctors that have increased 20 fold in real terms since 1970.2 They will rise again this year3 because health regulatory business is booming and, for doctors, this has meant a massive increase in the numbers and scope of guidelines, and a rise in complaints that the GMC’s chief executive describes as ‘staggering’.4
The effects of these processes are beginning to be documented: they make sick doctors sicker.5 The GMC’s long-awaited internal enquiry into deaths of doctors undergoing fitness to practise investigation identified nine suicides in 2013: one every six weeks.6
Research by Bourne et al, published this week in BMJ Open shines a further spotlight on the ‘blame business’.7 Using data from some 8,000 doctors, they show that disciplinary investigation is associated with serious effects on both mental and physical health. Further, many of the surveyed doctors admitted to defensive practice such as over-treating, avoiding high-risk patients and over referring. This cannot serve anyone’s interests. The GMC internal enquiry and Bourne’s paper tell a sad and consistent story: the casualties of excessive and disproportionate ‘regulation’ are both patients and doctors - not forgetting that doctors are also patients.
In the four years from 2010 to 2013, members of the public made over 18,000 complaints to the GMC but only one in a thousand led to a doctor being either suspended or erased from the register.8 Even employer referrals (the most potent complaints) incurred a sanction or warning in only a fifth of cases despite 90% being investigated.
From all sources there were 28,531 complaints against 19,630 doctors. The GMC investigated 8,278 and only 17% of those led to any kind of sanction or warning. Some 291 doctors were removed from practice after a tribunal hearing - many only temporarily. To achieve this, nearly 7,000 doctors who warranted no sanction or warning were subjected to investigatory processes that could go on for years.
We do not know how many of these doctors were subject to interim orders restricting or suspending them from practice but, in 2013, the GMC imposed interim restrictions on more than a quarter of the doctors it decided to investigate.9 In her study of the discrepancies between interim orders and eventual sanctions, academic lawyer Paula Case suggests that the GMC is - wittingly or unwittingly - using its processes to punish doctors for alleged misdemeanours well before the evidence is aired at any public hearing. Case quotes Lewis Carroll’s Queen of Hearts: “sentence first, verdict afterwards”.10
The GMC cannot justify continuing a system that is so clearly disproportionate. In July 2014, we published a discussion paper for the Institute for the Study of Civil Society that questioned the GMC’s own standard of working and asked that it show some of the reflection and insight it demands of doctors.12
But there was little evidence of meaningful reflection in the GMC’s attempts to extend its powers as set out in its August 2014 consultation on changing its sanctions guidance.13 That is, unless reflection has led them to move the goal posts so that they can improve their conviction rate.
Arguably, the most disturbing of the proposals was that ‘promoting and maintaining public confidence’ could legitimately justify sanctioning a doctor, regardless of any patient safety consideration. GMC staff and MPTS panelists would presumably determine what constitutes and governs public confidence and then apply it ‘on the balance of probability’ - 51 % is all that is required nowadays. The GMC failed to mention that the Department of Health was already consulting on the necessary statutory change in documents posted on-line over the summer holidays.14
The regulator also proposed sanctioning doctors who have not apologised or shown adequate insight. Sadly, GMC senior staff are not following their own prescription. Appearing before the Health Select Committee in the first week of January, the new GMC president felt that doctors must be hardened by “emotional resilience training”.15
The chief executive welcomes the inexorable rise in complaints. In his introduction to the 2014 report on the State of Medical Education and Practice in the UK, he commended a less deferential society in which “doctor knows best” while clearly being comfortable with the regulator’s own increasingly paternalistic role in prescribing what doctors should do in ever more situations.16
Unfortunately, while citing changes in expectation as the root cause of rising complaints from the public, the chief executive did not go on to consider whether the many thousands of patients (or their relatives) whose GMC complaints are not substantiated may have had their expectations raised inappropriately, nor what the consequence may be for them. This is doubly important issue as GMC-commissioned research has suggested that the GMC’s own media strategy may itself have contributed to the rise.
Another proposal in the GMC’s August 2014 consultation was that they would sanction doctors when they are judged to have failed to raise concerns about poor standards of care. It seems that doctors are to take the rap for failings of others in an environment where bullying is rife and where whistle-blowers may go in fear of their jobs and of management referrals to the GMC.17 The spectre of the Mid-Staffs scandal was very evident in this. It also pervaded a recent press release calling for openness and candour and a consultation on yet more guidelines in the wake of the statutory duty of candour being introduced for the NHS.18,19
However, the thrust of the changes proposed in the GMC’s August 2014 consultation actually runs counter to calls for medicine to move away from a culture of “blame, name and shame” - calls given added weight by the Berwick review of the NHS and Francis reviews of Mid Staffordshire.
Rather than seeing patient safety issues and patient dissatisfaction in the round, and rather than recognising the potential for its own activities to endanger doctor and patient wellbeing, the GMC apparently wants to “punish more and punish harder”.
The GMC’s role is as a regulator: it consistently denies that it punishes doctors but, in doing so, merely brings into question its own candour. Whilst punishment and redress are the preserve of the civil and criminal courts, the GMC encourages the reporting of medical mishaps and complaints through a protracted and adversarial disciplinary process.
Paula Case has commented: ‘While both the courts and the GMC doggedly avoid characterising disciplinary sanctions as “punishments”, it is clear that the rationales for sanctions and punishments share much common ground’.20
The findings of Bourne’s survey and the GMC suicides report support this construction and the punishment can only get worse if the fate of doctors rests on untestable judgements about public confidence rather than impaired fitness to practise. It must surely be high time for a radical re-appraisal of the role of the GMC. But what could we propose instead? Roy Lilley has suggested we could restore the GMC to its original aim of simply maintaining a list of registered practitioners whose training and practice meets approved standards.21 We suggest its disciplinary functions might then best be devolved to a smaller streamlined organisation which would provide a professional evaluation of all complaints received on the basis of there being a wider implication for patient safety that could justify curtailing a doctor’s right to practise. The right to make and to promote a complaint to the GMC that can destroy a doctor’s life should no longer be a right without attendant responsibilities. While recognising the need to avoid deterring the genuine complainant, arrangements must be made for exonerated doctors to obtain redress against the vexatious, the dishonest and the negligent. Might they even have a right to an apology?
Dr Christopher Lees is a clinical reader in obstetrics at Imperial College London and founding member of the doctors’ policy research group of Civitas.
Dr Hilarie Williams is a former GP who currently works part-time in medical research. She was previously a senior medical officer at the Department of Health and senior medical adviser to the Department for Education.
1 General Medical Council Annual Report 2013 GMC August 2014 p.69 http://www.gmc-uk.org/Annual_report_2013.pdf_57177544.pdf
2 Williams H, Lees C, Boyd M. The General Medical Council: Fit to Practise? Institute for the Study of Civil Society (CIVITAS), p.17. 2014. http://www.civitas.org.uk/pdf/GMCFittoPractise.pdf
3 General Medical Council. Press release: First GMC fee rise for five years - provisional fee frozen. 2 Dec14 http://www.gmc-uk.org/news/25984.asp
4 General Medical Council. The state of medical education and practice in the UK 2014. GMC October 2014 p.6 http://www.gmc-uk.org/publications/25452.asp
5 Brooks SK, Del Busso L, Chalder T et al. ‘You feel you’ve been bad, not ill’: Sick doctors’ experiences of interactions with the General Medical Council. BMJ Open. 2014 Jul 17;4(7):e005537.
6 Horsfall S, Doctors who commit suicide while under GMC fitness to practise investigation: Internal Review, General Medical Council. December 2014
7 Bourne T, Wynants L, Peters M, et al. The impact of complaints procedures on the welfare, health and clinical practise of 7926 doctors in the UK: a cross-sectional survey. BMJ Open 2014;4:e006687. doi:10.1136/bmjopen-2014- 006687
8 General Medical Council. The state of medical education and practice in the UK 2014. pp. 5, 21, 27, 63,67
9 General Medical Council. The state of medical education and practice in the UK 2014. pp 63, 66, 67,73, 78
10 Case P, Putting Public Confidence First: Doctors, Precautionary Suspension, And The General Medical Council Medical Law Review, 19, Summer 2011, pp. 339-371 doi:10.1093/medlaw/fwr015
11 General Medical Council. The state of medical education and practice in the UK 2014 p.89 ; web appendix pp. 15, 17 GMC October 2014
12 Williams H, Lees C, Boyd M, p21 -36
13 General Medical Council. Reviewing how we deal with concerns about doctors: a public consultation on changes to our sanctions guidance and on the role of apologies and warnings. GMC August 2014
14 Department of Health The General Medical Council And Professional Standards Authority: Proposed Changes To Modernise And Reform The Adjudication Of Fitness To Practise Cases DH July 2014 https://www.gov.uk/government/consultations/changing-how-the-gmc-decides-on-doctors-fitness-to-practise
15 Pulse. Doctors need resilience training like soldiers in Afghanistan, GMC head says. http://www.pulsetoday.co.uk/your-practice/practice-topics/regulation/doctors-need-resilience-training-like-soldiers-in-afghanistan-gmc-head-says/20008855.article#.VLKGQiusXTA
16 GMC State of medical Education and Practice in the UK 2014 p.5
17 Gerada C, Something is profoundly wrong with the NHS today BMJ Careers 16 Jun 2014 http://careers.bmj.com/careers/advice/view-article.html?id=20018022 ; ‘M.D’ Raj Mattu and the death of whistleblowing. Private Eye Issue 1365; 2-15 May 2014 p.11
18 GMC. Press Release: Duty of Candour: GMC expects openness and honesty among doctors 13 Oct 2014 http://www.gmc-uk.org/news/25605.asp
19 General Medical Council New guidelines for doctors, nurses and midwives put honesty at the heart of healthcare GMC Press release 3rd November 2014 http://www.gmc-uk.org/news/25891.asp
20 Case p349.
21 Lilley R. Good Bad and Ugly: News and comment from Roy Lilley. 26 August 2014 http://archive.constantcontact.com/fs136/1102665899193/archive/1118290280327.html