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