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The lessons from my father’s death for the future of out-of-hours care

Dr Stuart Gray, the GP son of the patient who died at the hands of German locum Dr Daniel Ubani, explains how he faced down ministers' indifference to call for reform - and why the Tories' plans are not the answer.

On Saturday 16 February 2008 Dr Daniel Ubani, a German doctor on his first shift in the UK for a private GP out-of-hours provider, Take Care Now, visited my father, David Gray, who was suffering symptoms of renal colic.

Dr Ubani administered 100mg of diamorphine stat. My father shook his hand to thank him, saying he was starting to feel better already. Within minutes he was dead.

In a letter to the family later Dr Ubani readily admitted he had no knowledge of the drug diamorphine, let alone the dose, but continued to give him 100mg stat. Also on that shift, Dr Ubani was heavily criticised by the pathologist and an out-of-hours expert for his treatment of a patient who had suffered an MI who subsequently died and he failed to admit to hospital, and a migraine sufferer who he gave a diuretic injection to who did end up in hospital. The next day a nurse in the clinic he was working at was so concerned about his abilities she phoned her superiors.

Dr Ubani was 66 years old, an anti-aging/cosmetic surgeon in Germany who had no evidence of previous GP training or, in fact, any evidence of experience in GP practice in his own country. He had flown in the night before from Germany to work the weekend before flying back afterwards.

Subsequently an European Arrest Warrant was issued to the Germans against Dr Ubani for manslaughter but the Germans decided to send him a letter of conviction by post for negligent killing, after receiving it without informing the UK authorities. They had none of the evidence of the case on which to convict him.

As Dr Ubani did not respond to the letter of conviction, it became absolute a month later. He has never been questioned by the UK police, the German police or the German Doctors Chambers (their equivalent of the GMC). He had a nine month suspended sentence and had to pay costs of 4500 Euros.

Unbelievably Dr Ubani continues to practice without restriction in Germany, although he has been suspended by the GMC. In the coroner's summing up at the recent conclusion of my father's inquest, he questioned how such a lamentable situation was reached. Furthermore, he went on to make eleven recommendations under Rule 43 to the Secretary of State for Health for actions to be taken to improve the system. Also, in January 2010 a review of GP out-of-hours services was completed by Dr David Colin-Thome, National Director for Primary Care and RCGP chair Professor Steve Field.

After my father's death I wrote to the health minister for out-of-hours care requesting the whole set up be looked at at a national level and involving the RCGP, DH and independent organisations, but received a reply back from Mike O'Brien in June 2009.

It was full of political rhetoric and referred to lots of studies and reports that concluded how wonderful the current out-of-hours service was and how it had improved since the GP opt out in 2004. He categorically stated he had no plans to carry out either a national or local review of OOH care - after all he is a politician.

How educated he has subsequently become - in a large part, I believe, through media pressure.

Regarding the media, after the non-execution of the European Arrest Warrant by the Germans in April 2009 the police and Crown Prosecution Service informed my brother Rory and I that they were closing the case, as they could no longer prosecute Dr Ubani because of the double jeopardy rules. They also felt the out-of-hours services had all performed appropriately. Astonishingly they advised us not to go to the media as they would not be interested and it could upset other relatives that had been treated by Dr Ubani.

We did not heed their advice and went to the national media as we felt strongly changes needed to be made. That decision has been vindicated by subsequent events - although the police state they are disappointed by us and the CPS lawyer will no longer communicate with me.

So what went wrong, what lessons have been learnt and what needs to be done?

The eleven recommendations issued by the coroner to the Secretary of State for Health, all of which we agree with, are listed in the box below. Here are my comments.

Currently the GMC registration of EU doctors is different from non-EU doctors in that, because of an EU Directive, the GMC have to put an EU doctor on their specialist register if they are on the specialist register in their own country, without assessing their clinical competence. This is in contrast to non-EU doctors who have to undergo clinical assessment. Standards vary widely within EU countries.

In Dr Ubani's case it looks like he may have been given his GP certificate in Germany through 'acquired rights'. That is, being an older doctor qualified before specific German GP training came into place in the 1990s, he was retrospectively given it without specific GP training, thus allowing him inclusion on the UK GP register. The GMC are unhappy with this state of affairs and feel they need to be able to assess EU doctors' clinical competence, but say their hands are tied by the EU directive which is not due for review until 2012. There needs to be an urgent review of this EU directive and the Government must put pressure on the relevant EU authorities to get these changes made.

Currently the GMC and the Government say the EU directive forbids them to test the English competency of EU doctors before registering them and it is the responsibility of the employing organisations. (Dr Ubani failed an English test carried out by NHS Leeds but got onto NHS Cornwall and Isles of Scilly's list because they didn't carry out an English assessment). We believe, with the support of our barristers, that their interpretation of the EU law is wrong and they should bring in immediate language tests in line with non-EU doctors.

Currently there is no EU-wide database of doctors detailing malpractice, suspension or removal from registers. (Dr Ubani had a string of malpractice findings against him in Germany in relation to cosmetic surgery that we found out ourselves, but that the GMC was unaware of. He is also suspended in the UK but not in Germany, so any other EU country would have no idea of his UK suspension) This database must be set up and consulted before registration by the GMC.

As the coroner states, a national protocol must be drawn up and applied before an applicant is admitted to a performers list and a database set up to, amongst other things, record previous applications and withdrawals to PCTs.

In Dr Ubani's case he initially applied to NHS Leeds but was rejected on the grounds of his inadequate referees, the inability to provide evidence he was going to work in the area and failure of their English test. He withdrew his application and applied to NHS Cornwall and Isles of Scilly, where their procedures were not as rigorous, and he was admitted onto their list. He was then able to work in any PCT in the country and got work in Cambridgeshire. Nor did he ever have a UK Enhanced Criminal Record Bureau check.

An important aspect of the coroner's recommendations in this regard is to have a suitably qualified accountable officer responsible in each PCT for admission onto the provider list. Another major point is that the PCTs themselves must be responsible for the vetting of doctors, and not out-of-hours providers. Dr Ubani was employed by a locum agency, subcontracted by Take Care Now, who in turn subcontracted to Suffdoc, who held the out-of-hours contract with NHS Cambridgeshire. As was very clear at the inquest there was no clear line of accountability or responsibility for the vetting, training, induction or monitoring of foreign out-of-hours doctors. If implemented the coroner's recommendations should tighten up procedures and accountability.

What about the future?

Different political parties have differing views on the way provision of out-of-hours care is provided, as indeed do we as members of the medical profession.

The Conservatives want it handed back to GPs but, although it would no doubt be a popular soundbite to give out to the public, going back to the pre-opt out days would be a massive retrograde step. I recall being in a sleeping bag on the surgery bench trying to get what little sleep I could during my out-of-hours shifts and then having to work full surgeries after doing all weekend on call.

I am sure most of us would not feel a return to those days progressive.

However, there may be a place for large GP co-operatives to take on the out-of-hours responsibility providing it was adequately resourced and time could be taken off in lieu – although some daytime work would almost certainly have to go. Some PCTs appear to have successful GP co-ops running their out-of-hours.

Labour wish to continue with the PCTs providing the out-of-hours care but tighten up the system.

Mike O'Brien, the health minister with responsibility for out-of-hours care, has stated he intends to implement all the recommendations from the DH and RCGP by the end of this year.

A lot of these recommendations involve tightening up procedures already in place and extra checks. Although these are welcome, I believe more radical changes need to be made. If we are going to continue using out-of-hours providers subcontracted by the PCT, then all the coroner's recommendations should be implemented. Unless that is done I feel there will still be outstanding areas of concern in providing a safe out-of-hours service.

Another option may be to make more use of secondary care services out-of-hours.

One thing is sure. Changes have to and will be made. It is important as GPs we have our voice heard in the implementation of these changes, and that it is done by consultation and not by imposition.

I do not have a complete answer to the provision of out-of-hours services in this country but my brother and I will continue our fight to get changes made to the system as it stands. We have a meeting with the chief executive of the GMC and then Andy Burnham shortly. We will do what we can to make it safer.

As their primary objective, GPs help and care for their patients. That is our job, that is what we endeavour to do. At the end of the day, despite some of the knocks we get from various quarters, we aren't a bad lot really and we possess an in-depth professional knowledge of patient care and want what is best for our patients.

That is why we need to be consulted in respect of the way we move forward with out-of-hours provision. And I strongly believe that this will now happen.

Dr Stuart Gray is a GP in Kidderminster, Worcestershire

Dr Stuart Gray The coroner's recommendations

Below are the eleven recommendations issued by the coroner to the Secretary of State for Health, all of which we agree with:

I deal with my power under Rule 43 of the Coroners Rules 1984 to make an announcement. Rule 43 is headed 'Prevention of Similar Fatalities'. The body of the Rule reads 'A Coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the Inquest is being held may announce at that Inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly.'

I shall indeed make a report to the Secretary of Health suggesting the following actions be taken:

1) Having regard to specific training in medical practice, and the variation in status of general medical practitioners across member states of the EU, that he undertake a review of the operation of the Council Directive 93/16/EEC within the United Kingdom.

2) Guidance be given to all PCTs reminding them that each PCT must be satisfied under Regulation 6(2)(b) of the National Health Service (Performers List) Regulations 2004('Performers List Regulations') that each PCT must be satisfied that performers have a sufficient knowledge of English to be able to work as a doctor.

3) Guidance be given to all PCTs that in assessing applications to join performers lists they must be able to demonstrate that they have applied Regulation 6 of the Performers List Regulations robustly, and that they have an appropriately qualified person responsible for ensuring that this is done in each PCT.

4) Steps be taken to ensure that each PCT follows a nationally drawn up protocol (to avoid variation in standards) before deciding to admit a practitioner to a performers list.

5) Steps to be taken to remind PCTs that it is a mandatory requirement under Regulation 6(2)(a) that the PCT concerned must be satisfied that performers intend to deliver services in its area.

6) Guidance be given to PCTs recommending that PCTs should, when considering an applicant's suitability to join the Performers List, consider whether he has failed to progress other applications by him to other PCTs, and whether any such other applications have been turned down.

7) That guidance be given to all PCTs requiring risk assessment in respect of every non-UK based doctor in out of hours care such risk assessment to include assessment of a) the doctor's degree of experience of working in the NHS, b) whether the doctor gained accreditation to do general practice in his home state under any acquired rights system, rather than by examination or accreditation.

8) That guidance be given to PCTs ensuring that quality assurance in recruitment should be the responsibility of the relevant out of hours provider and should not be delegated to commercial agencies who provide doctors.

9) That there be guidance to ensure that all PCTs have written contracts with their out of hours provider, containing detailed requirements concerning standards to be observed by out of hours providers in the recruitment, training and induction of staff for out of hours work, and that such contracts have robust clinical governance and risk management structures in place.

10) That there be guidance to ensure that all contracts between PCTs and their out of hours providers are regularly and robustly monitered to ensure quality service standards.

11) That the Department of Health institute a national database of doctors from abroad who apply for inclusion on any performers list, such database to hold information on language skills, levels of medical competence (including qualifications and appointments), criminal record checks and records of any malpractice, and whether any doctor has been registered by, or had withdrawn his application to any PCT.

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