Response of the BMA to the CHRE’s consultation document, 'Harmonising fitness to practise sanctions across regulators'
February 2008
Thank you for seeking the views of the British Medical Association on the Council for Healthcare Regulatory Excellence's (CHRE) consultation document on harmonising fitness to practise sanctions across regulators. The BMA is an independent trade union and voluntary professional association which represents doctors from all branches of medicine throughout the UK. It has a total membership of over 139,000.
Questions 1 to 3: Common sanctions
Question 1: Should all regulators in FTP cases have available the same set of sanctions?
There is some logic in the principle that all health professional regulators should have a common range of sanctions available to them. Such a policy would enhance the understanding of the public about regulation and its confidence in the systems of regulation. We have some concerns about having a “one size fits all” group of sanctions as there are many differences between the healthcare professions.
Question 2: If you believe that there should be a standard set of sanctions, which of the following existing sanctions should be available to all regulators: erasure from the register, suspension from practice, conditions on practice, cautions or warnings, fines?
The list of sanctions is comprehensive and covers eventualities in different professions. It could be difficult to co-ordinate the stage at which the various sanctions should be used as some practitioners, if unfit to practise, can clearly do more harm to patients than others.
We do not believe that fining a doctor would be a useful sanction as it is merely punitive and would not protect the public nor address health or performance issues.
Question 3: Are there any other sanctions that should be included in the standard set?
The list does not cover “undertakings”, which are agreements that are reached between doctors and the General Medical Council about a doctor’s future practice.
Questions 4 and 5: Erasure / Striking off / Removal
Question 4: Should there be a common term for ‘erasure’/ ‘striking off’/’removal’ across the regulators?
We believe that all the terms are sufficiently descriptive, but “striking off” is a loaded phrase so would prefer something less emotive such as “erasure”.
Question 5: Should erasure be available to all regulators in cases in which allegations relate solely to health and/or performance?
A doctor may not be erased currently from the Medical Register by a fitness to practise panel if the case against him/her relates solely to his/her health. We believe that this is correct and that every effort should be made to rehabilitate a practitioner who is ill.
In respect of performance, we believe that all regulators should be allowed to erase from their registers.
We continue to believe that no action should be taken against a person’s registration unless the standard of proof applicable to the finding of facts in any proceedings is that applicable to criminal proceedings.
Questions 6 to 8: Restoration
Question 6: Following erasure, should there be a standard minimum period that must expire before an individual can apply for restoration to the register?
Yes.
Question 7: If so, what should it be?
We believe that there should be a standard minimum period before restoration is considered. At present a doctor whose name has been erased from the medical register may not apply to be restored until five years have elapsed which means, in effect, that he/she is erased from the register for life as it is unlikely that a doctor will be able to maintain his/her skills for five years without registration. For that reason, we feel that five years is too long a period in some cases. Time before restoration to the registers might depend on the issue that caused the erasure initially. In considering the minimum period of erasure, a balance is needed between the need to enforce a significant sanction on the professional, but also the possibility of rehabilitation and the restoration of competencies. The regulator should also specify what sort of evidence it would want to consider prior to restoration, so long as this might be reasonably supplied by the applicant.
Question 8: Should all regulators be able to specify to the registrant the kind of evidence the regulator would want to consider at a restoration hearing?
Yes, the evidence should be specified as far as possible in relation to the practitioner’s impairment, as this would give the former registrant an indication of what he/she would have to do before and after being considered for restoration.
Questions 9: Suspension
Question 9: What powers / recommendations can regulators have / make when imposing and reviewing suspension orders?
Paragraph 39 in the section on suspensions suggests that registrants could be required to address some of the issues raised by further training or remediation. If this idea is to be pursued then funding must be identified since it is unlikely that the registrant will be able to pay for remedial training if he/she is suspended and unable to earn. If adequate funding were to be made available, it would be to the benefit of the practitioner and the public if the suspended person were to undertake a period of re-training, rehabilitation or medical treatment, but the type of activity undertaken during suspension would be dependent upon the reason why the practitioner was suspended in the first place.
The regulator must state what is expected to be achieved by suspension that could not be achieved by other sanctions.
With regard to clinical academics, suspension from the medical register would mean that they could not undertake clinical practice, but could allow continuing academic work. It is not clear what employers would feel about the financial arrangements in this situation.
Questions 10 and 11: Conditions
Question 10: Should all the regulators be able to review a case early if the registrant does not comply with conditions?
Yes, early review should be possible if conditions are not adhered to.
Question 11: Should the regulators be able to restrict a registrant’s practice by imposing conditions on restoration to the register?
Yes, regulators should be able to restrict a registrant’s practise by imposing conditions on restoration to the register. Conditions of restoration might include limits on practice, probationary periods, continuing medical treatment, or avoiding behaviour which might be an early sign of recidivism. The regulators need to specify how long additional conditions would be imposed for and what is to be achieved by these conditions, to avoid the conditions becoming an extension of the punishment.
Questions 12 and 13: Undertakings
Question 12: At a hearing, should there be provision in the rules of all regulators for panels to accept written undertakings from the registrant?
All regulators should have the option of accepting written undertakings from the registrant as an alternative to taking action on his/her registration, but only when the panel is sure that the undertakings will be sufficient to protect the public, will cover all the conditions that it would otherwise impose and is satisfied that the practitioner has sufficient insight to abide by the written undertakings.
Question 13: Should all regulators have a power to agree undertakings at the investigation stage, in appropriate circumstances, as an alternative to referral to a hearing?
All regulators should be able to accept written undertakings at the investigation stage in appropriate circumstances when there is information which indicates that the practitioner’s fitness to practise is impaired and the doctor acknowledges that impairment. The registrant needs to demonstrate insight into his/her failings and the undertakings need to be monitored. Undertakings should not be entered into merely to avoid a more severe sanction.
Questions 14 to 19: Cautions
Question 14: Should there be a single common sanction of warnings or cautions?
Yes, a common term would aid understanding among registrants and the public of the sanction which implies disapproval but also the anticipation of improvement and restoration of good standing in the profession.
If so, what should it be called? Currently, caution, warning, reprimand or admonishment are used.
Warning or caution, as they imply a cause for concern rather than punishment.
Question 15: Should cautions remain in place for a single fixed period of time? If so, for how many years?
Yes.
Question 16: Would it be helpful if FTP panels had the option of issuing cautions for different lengths of time (e.g. five years, three years, one year) to take account of the particular circumstances?
At present, a warning given by the GMC will be disclosed to the doctor's employer, and to any other enquirer, for a five-year-period. We would be more comfortable if there was some variability in the time period, depending upon the reason for the warning. Warnings should also be reviewed as a review might result in the warning being removed if there is clear evidence that the practitioner has taken action on the reason for the warning such that it is no longer relevant. We believe that fitness to practise panels might usefully offer cautions for a number of years (1-5) at the discretion of the regulator and proportionate to the transgression, but there should be annual reviews.
Question 17: Should cautions be available in cases in which the registrant’s fitness to practise is found:
• not to be impaired
• to be impaired?
We believe that cautions or warnings should be available to the regulator where there are significant concerns about a practitioner’s behaviour or performance and where these concerns fall short of impairment to practise. If a practitioner’s fitness to practise is thought to be impaired following a fitness to practise hearing then a caution or warning would be inadequate and the fitness to practise panel should impose appropriate sanctions on the practitioner’s registration.
Question 18: Should all cautions be required by law to appear on the relevant public register? Should all cautions be disclosed to enquirers?
Cautions relating to a practitioner’s health should not be made public, but all cautions should be disclosed to potential employers or those with whom the practitioner intends to enter into a contract for services.
Question 19: Should there be a standard procedure across regulators to take into account a previous caution, if a registrant appears before a FTP hearing at a future date?
Disclosure of a previous warning should only be made available to a fitness to practise panel if it is still on the record, for example for five years in the case of doctors. Once a warning has expired, it should be removed from a practitioner’s record and should not be disclosed to a panel.
Question 20: Fines
Question 20: Should financial penalties be made available to all regulators?
No, fines do not sit well with medical practice. An individual who is suspended will already suffer loss of income; a fine would further penalise that individual. Fines are merely punitive and would not protect the public nor address a doctor’s health or performance issues. Fines could be applicable to businesses, which may still be able to earn income – through the work of others - despite one of its employees being suspended from practice.
Question 21: Interim orders
Question 21: Should all regulators have a power to impose interim suspension and conditions?
We agree that, for the sake of public protection, all regulators should have the power to impose interim suspension / conditions on registrants, which take into account the immediate seriousness and risk of a particular situation. They should be used judiciously and all bodies need safeguards to ensure that interim orders are appropriate. The regulator must issue a clear statement indicating why interim orders are required and what they can achieve that no other method of sanction can.
Question 22: Immediate sanctions
Question 22: Should all sanctions imposed by FTP panels come into force immediately and / or should all panels have the power to impose an immediate order?
Regulators should only have the power to implement immediate sanctions under certain predefined circumstances (e.g. indication of immediate danger to public or practitioner). This will remove the registrant from practice temporarily while still leaving the prospect of appeal by the registrant before the decision becomes “permanent”, and more difficult to reverse. There will always be a possibility that some FTP decisions will be wrong, and the registrant would be further disadvantaged if the decision is immediately enacted.
Immediate sanctions should be monitored carefully to ensure that the rights of practitioners are not being eroded. The one month delay to allow an appeal is an important safeguard for the registrant in a situation that may end his/her ability to make a living.
Question 23: Registrant’s right to appeal
Question 23: Should registrants have a right of appeal against all decisions that affect their registration, including cautions?
Yes, professionals should have the right to appeal against all sanctions including warnings as all of these affect their registration. It is important that there is a mechanism to address potential wrong decisions, since a wrong decision will damage the reputation of the practitioner. Although doctors are given 28 days in which to indicate whether they will agree to undertakings, we do not believe that doctors should be able to appeal against undertakings as they are agreed between the doctor and the GMC.
Question 24: Other powers
Question 24: Are there any other sanctions for regulators to consider?
No, we believe that the current range of sanctions is adequate.
Question 25: Other comments
Question 25: Are there any other comments or suggestions that you would like to make regarding this consultation?
We agree in principle with the logic of the various regulators harmonising their sanctions, but suggest that other regulators should follow the example of the GMC, rather than vice-versa. This is because the GMC is regarded, worldwide, as a high quality regulator by many overseas medical regulators who are moving towards the GMC model. However, harmonising sanctions may lead to calls for the regulators to be combined into one body and we do not think this would be helpful to either the professions or the public.
The current range of sanctions available to the GMC is appropriate, and works – including undertakings and warning. The key is the evidence adduced which leads to a decision about fitness to practise and the appropriate sanction. If the investigative phase is done well, and the case presented well, then the current sanctions work.
Whilst sanctions are available to the regulators, the implementation of such sanctions depends on a number of factors, including treatment, supervision and educational support for doctors and dentists. The work done by GMC clinical supervisors in particular, is not well recognised by NHS employers locally, putting at risk the effective supervision of doctors and dentists as part of the sanctions.
As there is free flow of labour across borders, any final model which harmonises sanctions should be UK based and should not vary between the four nations of the UK.
It is important to note that fitness to practise hearings and sanctions at any level are likely to damage the reputation and confidence of a practitioner. Shifts in the standard of proof to be applied in fitness to practise hearings and the handling of concerns may make FTP hearings more frequent and some suggested changes could put individuals at risk of spurious accusations which, even if unproven, are personally damaging. Regulatory bodies should be required to issue statements offering support to the individual and his/her reputation where the accusations are unproven. Regulators must recognise that these investigations are life changing for the registrants involved and, in cases where the registrant is found not guilty, it would greatly help the individual if his/her innocence could be made clear in a statement from the FTP panel acknowledging that the accusations were unproven, that the registrant’s reputation remains intact and that he/she should be allowed fully to resume his/her former duties.
Along with increasingly tight regulation, there is increasing responsibility on employers and others to provide facilities for rehabilitation, support and supervision of healthcare professionals going through highly stressful procedures. In addition, there should be adequate provision for the monitoring of practitioners under conditions or sanctions. This will ensure that, not only are judgements well made, but that they are well implemented and supported.