| The GMC and MTAS - our legal case explained |
|
|
|
| Tuesday, 03 February 2009 | ||||
The GMC refused to submit the case to a lay or medical examiner. and blocked the enquiry. Those responsible for the 'biggest disaster in a generation' have simply walked away from the mess that they created and continue to hold positions of power and responsibility. Remedy believes that this GMC decision must be challenged, and we are prepared take legal action to have it reversed. We have strong legal arguments in our favour, a strong legal team and the courage of our convictions. Why did Remedy refer the case to the GMC?Our referral letter to the FTP Directorate is summarised here.Our specific complaints related to:-
We see no reason for them to be struck of the medical register, but we do think their practice should be restricted to keep them away from this field. We therefore consider this action an essential step to maintain the good reputation of the profession in the eyes of other doctors and the general public, to protect the public and the public purse against future equivalent mismanagement, and to rebuild the shattered trust. Why did the GMC reject the case?Dear Sirs Thank you for your letter dated 23 October 2008 and received on 30 October 2008.I apologise for the delay in responding. I should say at the outset that I readily acknowledge the strength of feeling about MTAS among those for whom the action group, Remedy UK, was established. Equally, I acknowladge that MTAS and its implementation has been the subject of forceful criticism from several quarters. Nevertheless, it is my duty to consider whether the GMC fitness to practise procedures provide an appropriate vehicle for the ventilation of grievances that are essentially about matters of national policy and their implementation. I have had to consider your complaint in 1he context of (1) the Registrar's role under Rule 4 of the General Medical Council (Fitness to Practise) Rules 2004 and (2) section 35C, supplemented by section 35CC. of the Medical Act 1983. Specifically, the Registrar should refer your allegations to a medical and lay case examiner if he considers that they fall within Section 35C(2). I have borne in mind that it is not the Registrar's function to adjudicate. Section 35C is concerned with allegations that a registered medical practitioner's fitness to practise is impaired. It is only "misconduct" or "deficient professional performancea material to a practitioner's fitness to practise that can fall within section 35C(2): see, for example, Calhaem v General Medical Council [2007] EWHC 2606 at [26J. Bearing that in mind, I have concluded that your allegations against [The Proposed Defendants] do not fall within section 35C(2) and that, accordingly, I should not refer them to case examiners, You suggest in your letter that there is here a case of either or both of "deficient professional performance" and "misconduct". I address each of those concepts in turn. Deficient Professional Performance Deficient professional performance was first introduced into the Medical Act 1983 by the Medical (Professional Performance) Act 1995. It was introduced to fill a perceived lacuna in the 1983 Act. There have subsequently been changes of terminology. However, it is plain on the authorities, and on the statutory scheme (see, for example, the provisions about performance assessments), that section 35C(2) is concerned with deficient performance in 'a clinical setting. I do not consider that allegations such as you make, which have nothing to do with the practice of medicine by [The Proposed Defendants], can sensibly be said to fall within section 35C(2). Misconduct Your letter has assembled a large number of selected quotations about the perceived deficiencies of MTAS and its implementation. It is, nevertheless, nonspecific about the actual conduct of [The Proposed Defendants] that is said to have constituted misconduct by them as individuals. But, irrespective of that feature, I have concluded that your letter does not make allegations that fall within section 35C(2)(a) of the 1983 Act. That sub-section is directed at conduct material to a practitioner's fitness to practise. Whatever the conduct of [The Proposed Defendants] with regard to MTAS, I do not consider that it can sensibly be said to impinge on their fitness to practise as medical practitioners. You refer to the case of Roylance and to Management for Doctors. I accept, of course, that it is not only misconduct in the treatment of patients that may trigger the GMC fitness to practise procedures. However, it was Dr Roylance's failure in a clinical setting to act to protect patients that constituted serious professional misconduct in his case. That is far removed from the circumstances you adduce in your allegations. Similarly, Management for Doctors addresses the role of those in managerial positions connected with the provision of medical services to patients within the NHS or elsewhere. Again, no proper analogy can be drawn for present purposes. In conclusion, I have decided not to refer your allegations to a medical and lay case examiner for further investigation. It follows that there is no warrant for an Interim Order of Suspension such as you propose. I would only add that I would in any event not regard an application for an interim order as proportionate or justified even if I had thought it right to refer your complaint to case examiners. Yours sincerely Investigation Manager Fitness to Practise Directorate What is Remedy's answer to the GMC?Their first objection is easy to dismiss. The overarching policy of MTAS and SSR was to bring in a system of recruitment and selection which was “open fair and effective”. It was the poor implementation, and the decision to go ahead with it in the face of the warnings and concerns of others, that was at fault. This was jointly and severally the responsibility of the Proposed Defendants, and other parties. The Registrar has no duty at this stage to decide whether or not this is an 'appropriate vehicle'. In any event the development of policies does specifically fall within the GMC jurisdiction - see below. The issues of Misconduct, Deficient Professional Performance and Fitness to Practice are more complex. The relevant statute is Section 35 of the Medical Act 1983 which simply states:- A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of— (a) misconduct; (b) deficient professional performance; (c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence; ...... The terms 'misconduct' 'deficient professional performance' and 'fitness to practice' are not formally defined, and much of their interpretation is based on case law and precedent. Some of the background can be read in the Shipman Enquiry which looked at the meanings of Fitness to Practice and the definitions of Misconduct and Deficient Performance. MTAS/SSR presented a risk to patient care in four ways - the impact on NHS manpower and finances, the effects on the clinical performance of junior doctors (which were well documented), the shortages of doctors in hospitals following these changes, and the changes to the start dates of employment contracts (a serious error which had the potential to compromise patient safety). In addition we think it self-evident that failing to correctly select or recruit the best doctors will have a deleterious effect on the standards of medical care. But there is nothing in the statute that says Section 35C applies solely in a clinical context or that patient care is necessarily involved. The statutory terms are poorly defined, and the GMC has previously adopted a very wide-ranging and expansive approach. Previous Case Law and judgementsThere are five relevant cases that need to be looked at.1. The case of Roylance. Dr Roylance was Chief Executive at the hospitals involved in the Bristol Cardiac Surgery case. The GMC called him to the Professional Conduct Committee, and accused him of serious professional misconduct on the grounds that he had failed to take action over the years to address the excessive mortality. His line of defence was that he owed no duty as a doctor. The issue at stake was whether or not the GMC had any jurisdiction. Precedents set following this case were:-
2. The case of Meadows. Professor Meadows was a paediatrian who had given expert evidence in a murder trial. A complaint was made about him to the GMC, alleging that the evidence he had given to the criminal courts had been badly flawed, particularly in the misuse of statistics, and that he deserved to be found guilty of serious professional misconduct and dealt with accordingly. He had not been involved in direct patient care, but yet was found guilty. He appealed against this. Precedents set in this case were:-
3. The case of Krippendorf. Dr Krippendorf was referred to the GMC on grounds of deficient professional performance, after she had allegedly administered BCG vaccine to children with an incorrect technique. Precedents set following this case were:-
4 The case of Drife. This case was the first case in which the council had disciplined one of its own members, and highlighted the jurisdiction of the GMC in non-clinical matters. Professor Drife, a professor of obstetrics and himself a GMC screener, had written a reference about a doctor which was accused of being misleading and incomplete. He had also neglected to mention that he knew the doctor personally. A GMC panel found that Professor Drife’s fitness to practise was impaired by his "errors of judgment". In passing sentence it ruled that he must not act as a case examiner, or otherwise in a judicial or administrative capacity on behalf of the GMC, for three years. The panel also ordered that he must not provide any professional references for three years. This case illustrates that the GMC can restrict the practice of doctors to certain areas - he was not restricted from all areas of practice, but had conditions placed on him that were relevant to the specific errors of judgement he had made. 5. The case of [insert name here]. The GMC have hauled many doctors in front of the Fitness to Practice committee for minor criminal acts, and for other non-clinical acts including plagiarism, writing rude letters to people and other misdemeanors. The general approach has always been that such actions, even when away from the clinical arena, can affect the Fitness to Practice of a doctor. This comes about because doctors occupy a position of privilege and trust within society, and are expected to act with squeaky clean integrity. So for example in one case where a doctor was found to have accessed pornographic websites at work, well away from the wards, the wrath of the GMC Panel descended upon him. They quoted their righteous duty to "protect patients, maintain public confidence in the profession, and to declare and uphold proper standards of professional behaviour and conduct." And then, after acknowledging that any sanctions imposed must be proportionate, they suspended him from the register for nine-months. The contrast in the penalties applied to this case and the previous case speak for themselves. Management for Doctors - GMC GuidanceGMC jurisdiction is further highlighted in "Management for Doctors" booklet.2. For the purposes of this booklet, management is defined as: Getting things done well through and with people, creating an environment in which people can perform as individuals and yet co-operate towards achieving group goals, and removing obstacles to such performance. 3. Doctors' management roles often involve responsibility for teams, people and the resources they use. If you manage resources other than people, or develop policies, set standards or audit others, you should follow the guidance in this booklet as far as it is relevant to your role. 4. You continue to have a duty of care for the safety and well-being of patients when you work as a manager. You remain accountable to the GMC for your decisions and actions even when a non-doctor could perform your management role. … 6. We recognise that doctors in an assortment of roles take on management responsibilities to varying degrees: you may be a single-handed general practitioner or lead a small clinical team; or you may be a clinical or medical director or a chief executive. We also recognise that your ability to put into effect parts of the guidance in this booklet will depend on the authority your position gives you as well as the resources made available to you. The effect of this guidance is to dig a deep hole for the architects of MTAS which they cannot easily fudge. There can be no escape, even if their mistakes were so non-clinical that a non-doctor could have made them. The selection and recruitment of doctors is clearly linked to the provision of medical services to patients. The culpability here seems irrefutable. Can the GMC refuse to hold an enquiry?The first stage for any complaint referred to the GMC is for it to be assessed by a Screener, who has to determine whether the case has a realistic prospect of success. This stage is intended to weed out complaints which have no chance of proceeding. Much of the case law derives from the case of Toth in 1998 where it was given that:-
So what can Remedy do about it now?If the GMC cannot be persuaded to change its mind then we will seek a judicial review of their decision. Judicial review is a legal process whereby a public body is challenged in court for acting illegally or irrationaly, or for making a decision improperly. If we succeed then it can be ordered to reconsider this decision. Judicial review in the High Court is the legal technique that Remedy used in 2007 to challenge the Secretary of State for Health. We understand many of the complexities and we have learned many lessons. We are asking for a review of the decision to not referring the case to a Case Examiner. We want to establish whether or not the GMC has jurisdiction in cases like this. Or do those in Ivory Towers live in an unempeachable world lined with teflon and merit awards? 
In the first instance we are looking to raise £20,000. What can I do to help?This is a landmark case which could make GMC case law. We are hoping for donations in the region of £15 to £50 from individuals. You can donate by credit card, direct debit, bank transfer or Paypal - and we can accept anonymous donations of cash sent through the post if you want. We would also welcome corporate donations. To make a payment now click here. To read our February Press Release click here |
||||
