A turning point for medical regulation
Authors: Hilarie Williams, Christoph Lees
Publication date: 20 Jan 2015
Hilarie Williams and Christoph Lees of Civitas ( [Link] ) hope that the opposition to plans to expand the General Medical Council’s power signals a much needed overhaul in medical regulation
We had high hopes for the accountability hearing that the Commons Health Select Committee had with the General Medical Council (GMC) on 6 January 2015. After all, the hearing came after the long anticipated publication of the GMC’s review into doctors who commit suicide while under GMC fitness to practise investigation. We had hoped that the GMC would offer some insight into the effects of its processes on doctors. Instead, the GMC suggested that doctors should develop “emotional resilience” to confront the high likelihood that they would be subject to at least one investigation during their professional lifetime.
Reaction from grassroots doctors suggests that the profession is gaining insight into the reality of medical regulation and is now willing to speak out. This has taken a while. For 15 years, the Shipman effect has held sway, and few doctors have dared to challenge the new reality of medical regulation for fear of being accused of complacency, or worse.
Academic lawyer Paula Case, who has undertaken a probing analysis of GMC interim orders, says that the case of Harold Shipman has been used to justify widespread regulatory changes. “Shipman’s atrocities [have] been used as a vehicle to expedite sweeping reforms of medical regulation accompanied by great expense,” she says. “These reforms will often be of little assistance in, for example, preventing a ‘Shipman #2,’ but are utilised in the general assault upon perceived crises of public confidence in the medical profession.”
In 2013, the GMC received 8591 complaints about the 238 247 doctors who held a UK licence to practise. This represents a 64% increase on the number of complaints in 2010, and means that there was on average a complaint for one in every 28 licensed doctors—equivalent to at least one a week in a large NHS trust.
Of these complaints, 3055 (35.5%) were put immediately into the GMC investigation category. Another 1137 (13%) were referred to employers, but with potential to return to the fitness to practise system as needed.
At the accountability hearing with the Commons Health Select Committee, GMC officers said that 91% of complaints were resolved within a year. That would mean over 770 complaints were still unresolved after that period. Many cases last over two years and some much longer, and cases stack up over the years with doctors being left in professional limbo. Some of these doctors are effectively unable to work, despite the fact that most will ultimately be exonerated.
For the 2013 complaints, the GMC imposed interim orders restricting practice on 784 of the 3055 doctors who were investigated (25.6%). These restrictions were put in place even though their “conviction rate” for investigations since 2010—even including warnings—was way below this.
Between 2010 and 2013, a total of 1383 complaints led to a sanction or warning of any kind. This represents 17% of the 8278 complaints investigated and only 4.8% of all the complaints made, but it includes 291 doctors who were removed from practice after a tribunal hearing, many of whom would have been short term suspensions for offences not directly related to patient safety. This all adds up to there being a large number of doctors who are, in some way, under GMC disciplinary processes at any one time.
The impact of these processes has been shown by Tom Bourne and colleagues in a seminal study of nearly 8000 doctors. The researchers rightly flag some limitations of their study, but the sheer number of doctors concerned makes this study highly significant.
The study reports high rates of psychological morbidity in doctors facing all types of complaints. Unsurprisingly, the impact was greatest on those undergoing GMC investigation. Over 26% had moderate to severe depression, 22% had moderate to severe anxiety, and 15% had had thoughts of suicide.
Bourne and his team also examined how doctors changed their clinical practice in response to complaints. Over 80% of doctors reported changing the way they treat patients after complaints against themselves or others. The most common changes were “hedging” behaviours, such as over-investigation, over-referral, and over-prescribing.
Just under half of doctors described avoiding high risk patients and procedures, 23% reported suggesting invasive procedures against their professional judgment, and 16% reported abandoning procedures early. This is consistent with findings elsewhere in the world.
The primary stated purpose of the GMC is to protect patients. Yet what Bourne and colleagues call the “complaints pyramid” of the GMC produces a climate of fear in which changes to practice are almost certain to damage more patients than the small number of doctors sanctioned by the regulator could ever do.
Fear is not compatible with a culture of transparency and openness. In 2013 the National Advisory Group on the Safety of Patients in England stated: “Fear is toxic to both safety and improvement.” It is pertinent that Bourne found that 20% of doctors undergoing investigation of a complaint felt they were being victimised for whistleblowing, and 38% said they had been bullied during an investigation.
The psychological morbidity and defensive practice described by Bourne and colleagues can be attributed to the current complaints structures and to the GMC’s powers. Yet the GMC’s consultation has set out many wide ranging proposals to extend those powers.
The GMC received a substantial response to its August 2014 consultation on indicative sanctions guidance and the role of apologies and warnings, even though the consultation, which was launched just before the August bank holiday, passed under the radar of many doctors.
The GMC’s consultation was released a month after we published a discussion paper entitled “The General Medical Council: fit to practise?” for the Institute for the Study of Civil Society (Civitas). In that paper, we highlighted concerns about the rise of complaints, the poor standards of evaluation of many cases, and the potential impact on both doctors and their patients.
The GMC’s proposals for extending medical regulation include requiring doctors to apologise and guide panels on cases where they consider that a doctor lacks insight, an approach that seems to have overtones of political show trials.
A parallel consultation on related statutory change was launched by the Department of Health. Despite the Cabinet Office’s commitment to “open policy making” involving “real discussion with affected parties,” the Department of Health’s consultation was put online on 31 July without any notification being given to registered medical practitioners.
The Department of Health’s proposals would move the GMC away from its current objective, which is to “protect, promote and maintain the health and safety of the public.” This goal would be replaced with an “overarching objective” for the GMC of “protection of the public” including “to promote and maintain public confidence in the medical profession.”
The GMC has also put forward proposals to sanction, solely on grounds of “maintaining public confidence,” doctors who are found to be unimpaired. This subjective and undefined standard raises the prospect of GMC case examiners and Medical Practitioners Tribunal Service panellists making judgments about the public mood to impose sanctions when there is no evidence that a doctor poses a danger to the public.
With this proposal, a standard appropriate to politicians has made an appearance in the sphere of medical regulation. This also opens the door for the media to influence individual outcomes even more than they are thought to do at present.  However, the case is not made that the GMC needs to work to maintain public confidence in doctors. The public has more trust in doctors than in any other professional group, and surveys by the NHS and by independent pollsters show consistently that the majority (80-90%) of the public trust doctors, despite a general decline in public trust in other professionals.
Using the maintenance of public confidence as an arbiter would facilitate another proposal—that the GMC can sanction doctors for undefined “concerns” about their lives outside medicine. These were illustrated with extreme examples, including domestic violence and child abuse. These are criminal offences that automatically trigger regulatory intervention. It seems likely that there would be some degree of “creep” in cases that would trigger intervention, with a shift from major crimes to more minor cases. There is a precedent for this in the real life application of interim orders, since the examples given in the guidance on applying interim orders are “rape, attempted rape, murder, and sexual abuse of children,” but such orders are now used for far lesser misdemeanours.
It seems reasonable to ask why the GMC is seeking to expand its powers and why the chief executive of the GMC welcomes each yearly rise in complaints. Over the four years from 2010 to 2013, there was a complaint for one in every 12 doctors holding a licence to practise.
Most of the complaints came from members of the public, who are facilitated by dedicated sections on the GMC website. Yet less than 1% of these complaints led to a sanction or warning being handed down. Only one in 1000 complaints led to a doctor being ultimately suspended or erased from the register.
The GMC should have been aware since early 2013 that doctors who had gone through its processes had serious criticisms of its procedures. A report that the GMC itself commissioned showed that, in addition to frustrations with lengthy delays in the process, doctors felt both threatened and deeply frustrated by lack of common sense in the system, the perception of overkill, and the system’s failure to detect and weed out vexatious complaints at an early stage.
It should not require data on suicides, nor Bourne’s extensive survey, to suggest that the system requires a radical overhaul, not expansion. For every doctor who is struck off, at least 50 are put through investigations that can take years. Some receive lesser sanctions, but 83% of the 8278 doctors who had fitness to practise investigations in 2010-13 were exonerated. This contrasts with an 83% conviction rate in the Crown Court.
Appetite for change
We live in interesting times for healthcare. Censure of its myriad regulatory bodies by bloggers is becoming commonplace, and there is a growing sense that change is needed.   The chairman of the Public Administration Select Committee, Bernard Jenkin, has commented that handling of clinical failures “does not seem to foster positive outcomes or learning from mistakes.
“There seems to be a culture of blame and of responding only to complaints,” he said. “Right now the only outcomes after clinical failings seem to be another excoriating report by a health watchdog, litigation or the passing of badly handled complaints further up the chain to adjudicators of last resort.”
This is an accurate summary of the situation and we welcome the Public Administration Select Committee’s launch of an inquiry into NHS complaints and clinical failure. The committee’s inquiry has been inspired by unfavourable comparison of accident investigation systems within the healthcare sector with those in air, rail and maritime transport.
If, as is suggested, the NHS could develop an independent healthcare investigation agency then there must be an accompanying review of the whole range of healthcare regulatory bodies, including the GMC. This is a “no brainer.” As the US Institute of Medicine aptly put it in 2001, ‘‘The biggest challenge to moving toward a safer health system is changing the culture from one of blaming individuals for errors to one in which errors are treated not as personal failures, but as opportunities to improve the system and prevent harm.”
There is now an appetite for change among doctors and leading politicians. As a profession we must seize the opportunity, and it is within our grasp. The alternative to change is a more expensive GMC that investigates greater numbers of doctors, consulting on yet more “standards.” The effect of this epidemic of regulation will not be to improve patient care, but rather to drive underground candour, truth, and the willingness to improve through shared experience.
The model suggested by the Public Administration Select Committee would be a good start for a new approach to medical regulation, especially if it were able to encompass complaints about staff, clinical incidents, disciplinary proceedings, and systems failings by combining transparency, independence, and accountability with a non-punitive cooperative approach.
Competing interests: HW is a registered medical practitioner, a patient, and a patient carer and advocate. She has supported doctors undergoing GMC fitness to practise investigations. She is a member of Civitas’s doctors’ policy research group and author of a paper cited in this article. She has a part time contract from the NHS trust that employs Tom Bourne, but they work in wholly unrelated areas. CL is a registered medical practitioner, a Consultant Staff Council mentor at his previous hospital to 2013, and chairman of the local negotiating committee to 2013, and a founding member of the Doctors Policy Research Group, Civitas. He undertakes occasional non-GMC expert witness work. He is a colleague of Tom Bourne at Imperial and has coauthored research papers with him.
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Hilarie Williams member, Doctors Policy Research Group, Civitas
Christoph Lees member, Doctors Policy Research Group, Civitas