Response of the BMA to the CHRE’s consultation document, 'Protocols for investigation and referrals to regulatory bodies'
April 2008
Thank you for consulting the BMA on the Council for Healthcare Regulatory Excellence’s (CHRE) consultation document on Protocols for Investigation and Referrals to Regulatory Bodies. 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.
In your letter, you asked us to direct you to any pre-existing sources of advice and evidence where these are available, and the BMA’s Forensic Medicine Committee has suggested that you look at the document 'Complaints Against Forensic Physicians (Police Surgeons)’, which was developed at the Association of Forensic Physicians as they believe this would be relevant to you (document has been enclosed).
The lead persons in the BMA on regulation are Jacqueline Foukas (Head of Council Secretariat) and Catharina Ohman-Smith (Executive Officer, Council Secretariat).
1. Common protocols for investigation
(i) What tools and processes are currently available to employers (NHS and independent sector) to investigate concerns about health professionals?
Listed below are tools and processes available to investigate concerns about health professionals:
- GMC Fitness to Practice procedures
- Peer criticism and support
- Appraisal and job planning
- National Clinical Assessment Service (NCAS)
- Royal College Advice
Some PCTs have systems to record incidents, gather intelligence and investigate. We have received reports that some cases that actually need to be referred to the GMC are pursued as it is felt that it will reflect badly on the PCT, meaning that lessons are not learned, nor are improvements made.
(ii) How are decisions reached about which tool/process to use in any given situation?
If the matter can be resolved locally (in a "no blame" environment), it need not be taken further. Suspension of a doctor should only be necessary if there is a perceptible threat to patients.
There is currently insufficient guidance, and what exists is variable and often unclear. There are policies laid down, such as the DH’s guidance “Maintaining High Professional Standards in the Modern NHS”, but these are interpreted flexibly on a local basis, the result being very different processes from Trust to Trust. Despite the existence of guidance, there is no clear “how are decisions reached” methodology that is actually followed.
We would like a process characterised by uniformity and predictability, which is not influenced by pressure imposed upon it by other forces, such as the media. The choice of tool to use might be helped if the CMO's concept of a Responsible Officer works.
(iii) What in your view are the strengths in the way that investigations are currently handled by employers?
There is a strong focus on patient safety. Most employers understand the importance of having an impartial investigator and follow the principles of natural justice in this respect. Most employers also have a clear process set out for managers to follow.
(iv) What in your view are the weaknesses in the way that investigations are currently handled by employers?
There are many weaknesses and investigations tend to be overzealous. Currently there is little accessible information to hand for the regulatory authorities and the suspension of a doctor and the sealing of his/her office should only be necessary on rare occasions.
The variability and inconsistency of procedures within and between employers are major weaknesses. This can cause delays, e.g. there are reports that doctors have been excluded from work because of performance concerns for several months without any resolution and when the GMC is not involved.
We are concerned that there are too many doctors suspended whilst waiting for the time-consuming investigation and disciplinary processes to be completed, leading to a loss of skills and careers being destroyed.
Unless there is an obvious risk to patients then suspension is rarely the answer. If criminal offences are suspected then this falls outside the remit of an internal investigation. Then, innocence is presumed by the law and should likewise be presumed by the Trust.
For those doctors who do not pose a risk to patients, there could be an option for employers to ‘grant bail’. They would then be allowed to continue with their work while the investigation continues. This already happens for many, but Trusts can be too quick to suspend.
For doctors in training clinical errors are often a training issue rather than a disciplinary issue. If a junior doctor makes a serious clinical error that results in patient harm, rather than removing him/her from the training environment while an investigation takes place to establish root cause, the trainee should be supported in learning from his/her mistake, with further training as necessary.
Some weaknesses depend on the nature of the alleged offence. Many complaints by patients and relatives are about subjective issues, such as the way they feel the doctor spoke to them. These can be extremely difficult to follow up, especially when the clinical care provided was of the required standard. This subjectivity often means that the hospital apologises to the patient in an attempt to draw a line under the complaint, because the accusation is impossible to defend.
(vi) What in your view are the causes of the weaknesses – are they to do with weaknesses in the process, are they to do with the capacity of employers to conduct investigations, or other reasons?
We believe that they are both causes of weaknesses. Employers are unable to follow the processes without proper resources or the experience to devote to the process. Employers also do not have the capacity to deal with investigations. Other pressures, such as targets, may have a higher priority for them.
It is often unclear in the employer’s defined processes how internal investigations interact with or relate to external police or other investigations (e.g. GMC), and whether the employee faces double jeopardy with the multiple investigations taking place. It would be preferable for the employer to withhold judgement about the offence until these external investigations have been completed.
The involvement of the media can also add a layer of complexity, and while many employers refuse to comment in public on cases under investigation, sometimes a very strong public outcry can have undue influence on the outcome of the process. Trial by media could result in a miscarriage of justice, not least because of the general lack of detailed information about the case available to those discussing it in the press.
In such high profile cases, it would be helpful for there to be an understanding among the press and the wider public that healthcare staff simply cannot respond to the allegations being made for reasons of confidentiality, and that this leads to a grossly imbalanced account appearing in the press as the patient or their relatives have no such restriction. An understanding of the imbalance in information would help to reduce the pressure of those healthcare staff whose investigation is the subject of intense media interest.
(vii) What issues are encountered by regulatory bodies when receiving a case which has been referred by an employer, having already been investigated?
Double jeopardy can be a huge issue, although it should be always be made clear to the employee if they are facing a similar but different charge which actually requires referral to the regulator, for example if the initial internal investigation turned up evidence of a more serious offence.
Positions are often entrenched by the time a case has been investigated thoroughly internally, which can cause problems if the regulator wants to gather evidence later. Internally-collected evidence may be contested by one side or the other, and the regulator may not have the resources to conduct a full investigation itself in a timely fashion.
There are cases where an employer has found an employee guilty of an internally defined offence, only for the regulator later to dismiss all charges. The regulator’s processes, being independent and fully investigated and also semi-judicial in both foundation and conduct, ought to carry more weight than an internal investigation but, in some cases, the findings of the internal investigation tend to “stick”.
2. Guidance for employers on referring cases to the regulatory bodies
(i) What guidance is currently available to employers on when to refer a case to a regulatory body, or when a case should be dealt with locally?
Both NCAS and the GMC produce guidance on referrals.
(iii) How do regulatory bodies determine whether a given case should be dealt with at national level or referred back to the employer?
This question should be answered by the regulatory bodies.
(iv) How, in your view, should the threshold be defined at which a case should be dealt with by a regulatory body rather than the employer?
Issues which are specific to the conduct of the employee’s profession and which call into question his/her fitness to practice are more likely to require referral to the regulator. Issues which could occur in any profession or none (e.g. dress code breaches, attitude problems, lateness, excessive sick leave), which could be alleged of a cleaner or catering employee as easily as a of doctor or nurse, should be dealt with at an employer-employee level as they need not concern the regulator.
Potential “professional offences” should be discussed (confidentially and anonymously) by the most senior clinical manager of the same profession as the accused employee (e.g. the medical director when the accused is a doctor) with the equivalent senior person in another Trust. Where senior managers are of the same healthcare profession as the accused employee, they are subject to the same professional requirements and this may provide them with extra insight or judgement. It may be helpful to make sure that before anyone is referred to their regulator, the case is considered by a senior manager of the same profession especially when the employee’s particular senior manager is a lay person or from a different healthcare profession.