Search the website

Regulation of the medical profession - Health and Social Care Bill

Second reading, House of Commons, 26 November 2007
(This document applies to the UK)

The prime objective of any regulatory system for the medical profession should be to protect patients and to support doctors with performance difficulties. The vast majority of doctors perform well and safely, and acknowledge that it is imperative that patients are protected from the small number of cases of unsafe doctors. The BMA therefore fully supports measures that promote excellence in medical practice and that help to reduce instances of poor standards, negligence or criminality among doctors. We also support regular checks for doctors – revalidation - provided they are fair and workable.

The public has repeatedly demonstrated its trust in doctors (reference 1) and this public trust must be maintained. Part of that trust lies in the fact that good doctors will act as their patients’ champions, if necessary fighting for the right drug, the best treatment, and the patients’ freedom to choose where they receive it.

The Government announced its intention to change the way doctors are regulated in the UK in a white paper, Trust, Assurance and Safety – the Regulation of Health Professionals in the 21st Century (February 2007). Part 2 of the Health and Social Care Bill includes provision to amend the legislation governing doctors.

The BMA’s position on the Government’s proposals
Some improvements to the regulation of the medical profession are needed, but any reform must be workable in practice and maintain a system in which both the public and doctors can have confidence that fairness and justice will be delivered. The greatest protection for the public is to have a system where doctors feel able to admit to faults or failings in themselves and colleagues, confident in the knowledge that these will be dealt with in a fair, sensitive and supportive manner.

The BMA is concerned that some of the Government’s proposals are not only unfair to doctors but will compromise their clinical independence with consequent risks to patient care. There is a strong sense among doctors that many of the proposals, when taken together, will amount to the loss of professionally-led regulation.

• The BMA strongly opposes Clause 104 which imposes a requirement for all the health professional regulatory bodies and the new Office of the Health Professions Adjudicator to use the civil standard of proof (the balance of probabilities) in fitness to practise cases. The General Medical Council currently uses the criminal standard (beyond reasonable doubt). It would be an injustice to remove a doctor’s livelihood based on a lower standard of proof than is used currently.
• The BMA also has concerns about the removal of the adjudication function from the General Medical Council (GMC) and therefore the creation of a separate body, the Office of the Health Professions Adjudicator. We are also very worried about the role of the proposed “responsible officers” because we see them as having a conflict of interest between their various roles.

The loss of professionally-led medical regulation has the potential to compromise doctors in their role of speaking out for their patients with consequent risks to patient care. With a state-owned NHS which is virtually a monopoly employer, doctors could be compromised in their ability to use their clinical independence to get the best treatment for their individual patients, diminishing their professionalism and with consequent risks to patient care. This could also lead to the practise of defensive medicine which is not in the best interests of either patients or the NHS budget.

Standard of proof – Clause 104
The government and the General Medical Council are dropping the criminal standard of proof in adjudicating fitness to practise cases based on concerns about a doctor and instead will adopt the civil standard of proof. Although it is proposed that the civil standard of proof will be applied flexibly, the BMA strongly opposes this change.

The criminal standard of proof of “beyond reasonable doubt” is very clear. The balance of probabilities, as applied in the civil standard of proof, is more complex.

It cannot be right that a doctor’s means of earning a living will be determined on a balance of probabilities. There will be many discussions in the coming months about the proposal to operate a flexible civil standard of proof. If a doctor stands to lose his or her livelihood then the BMA remains convinced that nothing less than the criminal standard will do.

On 20 August 2007, the GMC launched a consultation on implementing the civil standard of proof in fitness to practise hearings.

• Although the GMC’s proposed change is lawful, and the BMA has responded to the document, we are concerned that the GMC is consulting on how to implement the change before Parliament has debated and voted on whether to introduce this move.

We note that clause 104 cannot be amended without resorting to primary legislation [clause 104(4)(a)]. The BMA is concerned that if, as we fear, the adoption of the civil standard leads to miscarriages of justice for doctors, the standard cannot easily be changed back to the criminal standard.

Adjudication function and the creation of the Office of the Health Professions Adjudicator (OHPA)
Clause 91 proposes the establishment of the Office of the Health Professions Adjudicator (OHPA). Schedule 7 amends the Medical Act 1983 to transfer from the GMC the functions relating to the adjudication of fitness to practise cases thereby separating the investigation of fitness to practise cases from their adjudication.

The BMA does not believe the case has been made for establishing a separate body and does not accept that the medical profession should lose the authority to regulate itself. Given that the GMC has already separated its adjudication function, making it independent of the investigation procedures, it is unclear what the evidence base is for creating a new body and how this will improve judgments on such cases. Although the Bill does include some detail about the operation of the OHPA, much still remains to be clarified and the BMA expects to be consulted on these in due course. We await information, in particular, on how the new body will be funded.

• The procedural rules, clauses 98 (3) and (4) make reference to the award and assessment of costs and expenses. The BMA understands that these subclauses relate only to those practitioners regulated by the General Optical Council, but we would welcome clarification of this on the face of the Bill.
• As part of its duty to inform the public, Clause 100(3)(a) indicates that the OHPA may withhold from publication “information concerning the physical or mental health of a person which the OHPA considers to be confidential”. We would have deep concerns if confidential information about the health of a doctor were made publicly available and therefore suggest that the OHPA be prohibited from publishing such information and not be given discretion in the matter.
• The transition from the GMC’s fitness to practise panels to those of the OHPA will require careful planning and management and the BMA calls for information on how this will be organised and a timescale for it.

Council for Healthcare Regulatory Excellence (CHRE)
Clause 105 renames the Council for the Regulation of Health Care Professionals. Clause 105(3) amends the CHRE’s main objective so that it is “to promote the health, safety and well-being of patients and other members of the public.” This seems to be very close to the GMC’s purpose, set out on its website, which is “to protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine”. The two bodies are distinct and we would not wish to see the CHRE’s objectives encroaching on those of the doctors’ regulatory body.

Clause 109 gives the CHRE additional powers to refer to the High Court, or the Court of Session, cases relating to impairment of fitness to practise on grounds of ill health. Its current powers allow it to refer cases only relating to misconduct and professional competence. The BMA has concerns about this extension of the CHRE’s powers as we do not believe that information about a doctor’s health should be made public in this way. At present, the GMC’s fitness to practise panels meet in private when considering confidential information about a doctor’s health and we believe that the confidentiality of such information should be respected in any subsequent proceedings.

Currently, if the CHRE has reason to believe that a GMC fitness to practise panel has imposed too lenient a sanction on a doctor, it may refer the case to the High Court, or the Court of Session. Clause 109 changes this so that the CHRE loses its power in this regard. Instead, the GMC and General Optical Council are given powers (Schedule 7) to refer these cases to the High Court, or the Court of Session following adjudication by OHPA. We are unclear about the timing of this as powers are being removed from the CHRE and given to the GMC and GOC in relation to decisions to be made by the OHPA when this body has not yet been established. The BMA is seeking clarification on the transitional arrangements.

Composition of the GMC Council
The BMA has long argued in favour of a medical majority on the GMC’s Council to retain professionally-led regulation and the profession’s confidence in the regulator. The White Paper proposed that the GMC should have, as a minimum, parity of membership between lay and medical members. The BMA does not support the government’s view that the existence of a medical majority undermines the GMC’s independence.

Currently, an Order in Council cannot impose a lay majority on the Council of a regulatory body. The BMA is very concerned to note that paragraph 4(3) of Schedule 8 (page 152) changes this and could pave the way for the imposition of a lay majority on the GMC. This causes the BMA great concern.

Responsible officers
Clause 110 inserts a new section 45A into the Medical Act 1983 to require designated bodies employing doctors to appoint or nominate “responsible officers”. Designated bodies would include NHS trusts and primary care trusts in England. All practising doctors would be expected to relate formally to a “responsible officer” who would have responsibilities relating to the evaluation of fitness to practise of doctors.

The BMA has concerns that the existence of this role could seriously blur employment and regulation functions. We believe that there is potential for patronage and prejudice if too much authority is placed in the hands of single individuals. The notion of embedding regulatory power within an employing organisation is of concern as it is likely that the responsible officer will be working alongside the colleagues whom they will be regulating – a complex and undesirable organisational arrangement.

We believe strongly that the “responsible officer” function should be separate from the employment one, as regulation has to be independent of the employer if it is to retain professional confidence and credibility. The information in the Bill about the role of these individuals does nothing to assuage our concerns.

It is essential that the public trust in the medical professional is maintained and deserved. Ministers must address the BMA’s concerns in order to achieve legislation that has the confidence of the public, employers and doctors.

22 November 2007

Reference:
1. Ipsos MORI poll commissioned by the Royal College of Physicians, 1 November 2006

For further information, please contact the BMA Parliamentary Unit:
Email: parliamentaryunit@bma.org.uk
Fax: 020 7383 6830