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Are fitness-to-practise processes fit for purpose in light of Mid Staffs scandal?

Clinicians from Mid Staffordshire have escaped sanctions. Elizabeth Sukkar investigates the outcome and Law Commission plans to reform how professionals are regulated

Despite the public’s desire to see those at the top of Mid Staffordshire NHS Foundation Trust to be held to account, none of the senior doctors working during the height of the neglect scandal has seen disciplinary action. Last month, the doctors’ regulator, the General Medical Council, dropped the cases surrounding the four doctors working in managerial posts at the hospital during the height of the scandal, in which corporate self-interest and cost control was put ahead of patients.

The reason? The GMC had been legally advised that there was not the evidence to show that there was either misconduct or impairment against any of them. But Niall Dickson, its chief executive, was clearly uncomfortable, acknowledging that many would “feel badly let down and frustrated that no one is taking responsibility for what happened”.

He revealed that the GMC?is exploring ways to make fitness-to-practise (FTP) procedures more effective: “We want to be able to hold doctors to account where they have harmed patients or put them at risk, even if they have subsequently shown insight and can claim they are no longer a risk to patients.”

His comment touched on a tricky issue: that professional regulators, including the General Pharmaceutical Council, assess a registrant’s impairment at the time of FTP proceedings rather than at the time of the misconduct.

It appears that regulators do not strike registrants off the register if they can show they are not impaired at the date of the FTP hearing itself, regardless of what happened in the past.

“This understanding is correct,” says Harry Cayton, chief executive of the Professional Standards Authority, which oversees nine regulators, including the GMC and the GPhC.

He tells The Journal: “The courts have determined that FTP panels should decide if registrants are fit to practise at that time — this allows for remediation, retraining and insight — and not at the time the incident gave rise to the complaint.” This approach is based on case law.

Tom Kark QC, the leading counsel to the Mid Staffordshire public inquiry led by Robert Francis QC, summarised it well in his letter to the GMC regarding the four doctors.

He wrote that the “likelihood of a panel finding that a fitness to practise of any of these doctors is (currently) impaired is almost nil. There is in other words no realistic prospect of such a finding in any of these cases.”

Process is “not fit for purpose”

However, patient groups have found it hard to hide their dismay. Julie Bailey, founder of Cure the NHS, a patient group that successfully campaigned for the public inquiry which was triggered by the higher than expected number of deaths at the hospital, tells The Journal: “The biggest disaster in the history of the NHS and nobody is to be held to account is very difficult for the public to understand. It isn’t as if the GMC hasn’t known this was coming; they knew the process they worked under, it’s the public that didn’t. The whole process is archaic and not fit for purpose.”

Ms Bailey, whose mother died at the hospital, said the group was disappointed with the lack of action by the GMC against the four doctors but added: “we weren’t surprised as we have had the same experience with the Nursing and Midwifery Council [NMC] involving the director of nursing”.

The group will be meeting with the health secretary shortly and will be pushing for changes to the GMC and the NMC, “as of course registrants should be judged on their failings at the time and not at a later date,” adds Ms Bailey.

The Patients Association’s chief executive Katherine Murphy says: “Years on, and after huge numbers of avoidable deaths, we have still only just scratched the surface of holding the nurses, clinicians and managers to account for the failings that occurred.”

Not a “get-out-of-jail-free card”

Although the Professional Standards Authority thinks healthcare professional remediation can take place, it is wary about the time it can take regulators to act.

Mr Cayton says: “People can go through retraining, show they have practised safely for a period of time and provide references from their peers. The purpose of the FTP panel is to determine if a healthcare professional is safe and competent to work now. However, we have been critical when a regulator is so slow to come to a hearing, meaning that a registrant can demonstrate they have corrected their behaviour in the meantime.”

So it is a balance of fairness to the registrant and the necessary speed so that the actual issue is dealt with within a reasonable timeframe, he points out.

He stresses that FTP is not about punishment but ensuring healthcare professionals are safe and competent, but that they need to show this. “It is not a get-out-of-jail-free card.”

But what about the GMC decision on the four doctors? Does he believe the decision failed the public? “The evidence before the GMC was not publicly available, so I can’t comment on it. [The] GMC felt that the evidence about the individuals showed they were not personally liable. [You must note that] there is a public interest in justice, as there is a public interest in sanction, but it can’t be just a court of public opinion. The lack of care at Stafford Hospital showed that all regulators, including the NMC and the CQC, failed the NHS. The problem with putting it right now is three years too late. It is not going to work.”

Lawyers’ views

But one lawyer is critical of the GMC decision. David Reissner, who heads the healthcare practice at Charles Russell, thinks it is unfortunate that the GMC, “in its keenness and apparent haste to deflect any criticism of its decision not to take any further action against the four doctors, has provided limited information that does not allow readers to understand any more than that a process has been followed”.

Since the GMC has not disclosed what it investigated and what evidence it gathered, he finds it difficult to comment further on the decision, but highlights conflicting decisions of the GMC.

In another high-profile case, a doctor who was also in a managerial position was struck off the medical register. After the investigation into paediatric mortality at the Bristol Royal Infirmary, the courts upheld a finding of misconduct against John Roylance, the chief executive of the hospital, who did not personally treat patients. “Misconduct need not involve medical treatment,” says Mr Reissner.

Mr Reissner believes Mr Kark’s letter to the GMC deals “rather narrowly” with the Roylance case. “In general, I would expect a healthcare regulator to say that a doctor — or a pharmacist — who was in a position of responsibility and who had been alerted to concerns about patient welfare, had a duty to act, and that a failure to act would be regarded as misconduct.

It is not clear to me from Mr Kark’s letter why the principles applied by the courts to Dr Roylance do not apply to the four doctors who are named in his letter.”

He explains how this applies to pharmacy, given the GPhC has published standards for pharmacy owners and superintendent pharmacists. “For example, they have a duty to identify and manage risks to patients. If something goes wrong at a pharmacy owned by a company, the GPhC would investigate whether proper systems had been put in place, and FTP proceedings would probably be taken against the superintendent and possibly against others.”

He adds: “Mr Kark QC points out that the GMC’s guidance for doctors in management positions was not as clear at the time of the Mid-Staffs events as it has been since the guidance was changed in 2012, but I am not convinced that this should mean that, if there is evidence that doctors failed to act when they should have done, they should avoid FTP proceedings. After all, the Roylance case was decided as long ago as 1999.”

Another lawyer, Philip Grey, a barrister specialising in healthcare and regulatory law at Mills & Reeve LLP, thinks the GMC’s statement on the four doctors shows that it wants to be able to take strong action more often than at present. “If that happens, it’s likely to have an impact on other healthcare regulators, like the GPhC, down the line.” But given the number of bodies with an interest in such a change, Mr Grey does not expect any developments for some time.

Cases where a doctor is guilty of historic serious failings but can show that he or she is fully reformed are a dilemma for the GMC. Mr Grey says: “They are concerned that the public want them to be able to take action in these cases, and that currently they cannot do so. They say they want to be able to ‘hold doctors to account’ even if the doctor can show he or she no longer poses a risk. Some may argue that such a change would go against the whole idea of FTP proceedings.”

He stresses: “Before either the GMC or the GPhC can erase a registrant’s name from the register, they must be satisfied that the registrant’s FTP is currently impaired… . If, having heard these arguments, a committee accepts that a registrant is not currently impaired, it cannot suspend, erase or impose conditions on the registrant. In these circumstances, the GMC can only issue a warning. The GPhC is limited to issuing a warning or giving advice.”

Mr Grey adds that if a healthcare professional admits or is found guilty of very serious allegations, it will be more difficult for him or her to persuade a committee that he or she has “reformed” and is no longer impaired. “That is why you do sometimes see individuals erased for wrongdoing that is quite old.”

 

Future direction

A future solution for how to judge professional impairment will be tied closely to the work of the Law Commission. It is due to publish a Bill in February 2014, which aims to revamp the regulation of health and social care professionals in England, imposing consistency across regulators where this is necessary in the public interest.

The Law Commission told The Journal that it “would not necessarily agree you can’t take action retrospectively, for example, in very serious cases of misconduct. Regulators generally accept that some things are so serious that, even if the professional has apologised and taken remedial action, disciplinary action may still be necessary.”

One expert close to its work reveals to The Journal that FTP panels are “completely misunderstanding the law because they are letting off healthcare professionals for past misdemeanours. That is not the case in law. You need to apply past misdemeanours and take them into account.”

The Journal understands that the new statute will say past events need to be taken into account, but the Law Commission would not go so far as to confirm this. It said it “is considering clarifying the existing law to make clear [that] confidence in a profession requires the regulator to assess whether historical misconduct should be grounds for impairment by a FTP panel”.

The Law Commission says the GMC appears to have investigated the four doctors but was not able to do anything because of a lack of evidence. It notes that the Roylance case shows that the GMC has powers to take disciplinary action even where the misconduct arises as a result of non-clinical matters.

Regulators, too, have their own view on how impairment should be measured. In their submissions to the Law Commission, both the GMC and the GPhC said they would support a test based on whether the registrant poses a risk to the public or that confidence in the profession has been or will be undermined.

Separately, the Government is planning to establish a new barring list for NHS managers, so they are blocked from taking up managerial posts in future. Although the Law Commission did not raise the issue of a barring list in its 2012 consultation, it is considering whether it will take the concept forward.

Some will argue that FTP hearings are not meant to be disciplinary or criminal proceedings: they are there to protect the public. The counter argument is that the public will lose faith in how healthcare professionals are regulated if they can avoid sanctions in serious cases because they say they have reformed.

Citation: The Pharmaceutical Journal DOI: 10.1211/PJ.2013.11128350

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