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This review of the GMC is too woolly - and GPs stand to suffer

The new 300-page document from the Law Commission is full of vagueries, writes Dr Jane Lockhart, and threatens to open the floodgates to a wave of litigation.

The DH-commissioned consultation on proposals to review and modernise GMC legislation, and make it more independent, while also aiming to harmonise legislation across all health sector regulators.

Authors of the consultation document from the Law Commission (enormous, at around 300 pages) suggest a wide range of changes, many of which seem reasonable, but some of which seem  misguided and potentially problematic for the profession.

The proposals include three areas which seem particularly contentious and which could open the floodgates to litigation against GPs a review of the five-year statute of limitations on investigating allegations, additional powers to reopen cases that they have closed to correct any mistakes, and how ‘impaired fitness is determined.

Abolishing the time limit

Firstly, the time limit for allegations does not seem fair. Currently the GMC has a five-year limit while some other regulators have none.  The main text seems to favour  the abolition of a time limit for all, stating that, 'in effect, the decision whether or not to proceed could depend in all cases on the   quality of the evidence available and not on an arbitrary time limit'.

For civil proceedings in  general there is a time limit of three years for cases involving personal   injury and six for other cases such as professional negligence by a  lawyer.

Courts have the discretion to permit claims brought out of time in  exceptional circumstances and there are a set of rules to determine when the time limit starts. It varies in certain specific cases for instance if the claimant is a child, but time limits are nearly always adhered to. Why should health professionals be treated differently?  Negligence in   many other fields may have equally distressing or harmful outcomes.

A time limit helps to ensure that well-founded allegations are made promptly and dealt with quickly - good for all parties.  It also ensures that allegations can be more fairly investigated because the evidence  and memories of those involved are fresher and thus more likely to be accurate. Imagine facing an allegation about something you supposedly did 15 years  ago - the medical records won't necessarily contain all the contextual information you need to defend yourself.

I believe the current GMC five-year rule is a fair compromise, given that there is already the provision that the time limit may be waived in exceptional circumstances ‘if it is in the public interest'. (Obviously, if a misdemeanour is so serious as to break criminal law, then the time limits do not apply anyway).

Power to re-open cases

These proposals encompass limited powers to re-open cases that did   not get as far as being considered by the Fitness to Practice Panel, but have been concluded by the issue of a warning, mutually agreed undertakings, or simply have not merited further consideration.   

The proposed grounds for  review are limited to the discovery of new evidence, or of an administrative mishandling of the case which would make a review necessary  for ‘the protection of the public' and ‘the public interest'.

This is reassuring on the one hand, as there does not seem to be the  intention that a case may be re-opened just because a complainant  disagrees with the outcome. 

However, the ‘public interest' is a debatable concept. This causes some concern: the GMC would consider the merits of the request, thus the fairness of this power  rests solely on their interpretation of what constitutes the ‘public interest'.

In addition, I understand that although there is a clear proposal  (Proposal  9-35) to maintain the doctor's right to appeal a decision of the  Fitness to Practice Panel in the High Court, there is no such reassurance on a doctor's right to appeal a case that did not make it  that far, but was dealt with by warning or mutually agreed  undertakings.

Would this power to re-open such latter cases be the doctor's only redress?  If so, the emphasis on ‘public' interest  may diminish the chances of a doctor getting a case re-opened when new  evidence comes to light which may prove their innocence. It might be argued this would be more in the interests of the  individual doctor than the ‘protection of the public'; question 8-17 in the main text seems to address this issue, by asking if the right of appeal to the High Court should be extended, but it is only a question - not a proposal.

 The GMC currently has a two-year time limit for review that can be waived in exceptional  circumstances.  The text asks  for views on whether this should be included in the statute.  My answer to  that depends on their answer to Question 8-17!

Neither fair nor good

My third concern is about how ‘impaired fitness' is determined (covered in section 7).

Question 7-1 asks which of three options should be used to define  impaired fitness.  One of these is that the current statutory  definitions should be scrapped in favour of a new test with no  definitions at all, ‘based on whether the doctor poses a risk to the public (and that  confidence in the profession has been or will be undermined)'.

I'm very concerned that this suggestion has been  included for consideration. My gut reaction is thus: how do you know  you have committed a misdemeanour if the misdemeanour is not defined? 

And how is it to be determined that the public's confidence is  undermined? 

It is all too woolly and, although many cases may be  clear cut, there are bound to be grey areas which would apparently be decided on the whims of the panel, rather than by reference to whether  specific well-defined statutory thresholds have been breached. 

The  paper admits it may well lead to an increase in allegations, which  would 'merely have to indicate a potential risk to the health, safety or well-being of the public', meaning, it lowers the threshold.

Inevitably  if these proposals bear out, more innocent doctors would be subjected to unneccessary examination -  which is neither fair nor good.

Dr Jane Lockhart is a retired GP in Ashton-Under-Lyne

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