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The future regulation of the medical profession in the UK

• Standard of proof to be used in fitness to practise cases: It is proposed that the civil standard of proof (the balance of probabilities) is adopted to replace the current criminal standard (beyond reasonable doubt). Although there is talk of the civil standard being ‘flexibly applied’ with it being close to the criminal standard when cases of sufficient gravity are being considered, it is clear from policy passed at the Annual Representative Meeting in June 2007 that such a change in the standard of proof is unacceptable to the profession. If a doctor stands to lose his or her livelihood then nothing less than the current criminal standard will do and we will do all that we can to maintain this. We believe a lesser standard of proof could result in unjustified adverse findings against a doctor. It is the case that any findings against a doctor could seriously compromise his/her position as a trainer, clinical director, clinical governance lead or representative medical politician and could have consequences upon a medical partnership, distinction award, promotion etc. Therefore, the proposed change in the standard of proof could have serious consequences and we are seeking our own advice from leading Counsel on the implications of its application and any potential for legal challenge.

• An independent adjudicator: A proposal promised in the forthcoming Health and Social Care Bill is for the establishment of a new body to undertake independent formal adjudication for the professional regulatory bodies. We said, when this idea was first mooted, that we did not understand why, when the GMC had reformed its functions, such a body was necessary. We do not believe that this change is necessary and we are concerned that no detail on the nature of such a tribunal and how it would work has yet been made available.

• 'GMC affiliates' and 'responsible officers': The Bill will also propose that a network of “GMC affiliates” be established at regional level in England and at national level in Scotland, Wales and Northern Ireland. These officers will be appointed by the GMC and will be accountable to it. They will have a number of tasks to fulfil, including advising, guiding and supporting local employers and NHS organisations and monitoring the investigatory work of health care organisations. Another development at local level will see, in England, all practising doctors on the medical register relating formally to a “responsible officer”, who is likely to be the employing organisation’s medical director or another person designated by the organisation (the devolved administrations will be asked to consider arrangements that are in keeping with their own health care systems). As the white paper acknowledges, this will be a significant extension to the authority, responsibility and workload for medical directors and their equivalents. Although we believe that it would be helpful, in the right circumstances, for performance problems to be resolved at local level and there may be advantages in extending the GMC’s role regionally, we have had serious anxieties about the nature of the role of the “responsible officer” from the beginning as we believe that there are risks of patronage and prejudice if too much authority is placed in the hands of single individuals. We also have concerns about the notion of embedding regulatory power within an employing organisation and 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.

Furthermore, these proposals do not take full account of the increasing diversity and range of employing organisations and the scope for responsibility falling between the different organisations with none willing to take this on. Then there are the dual employment patterns that are seen most strikingly amongst medical academics, but are also found in other parts of the profession. These variations will make the “responsible officer” role very difficult to administer from within employing organisations, and will increase the likelihood of legal challenges which will in turn defeat the original purpose of the proposals.

• Composition of the Council of the GMC: The government has proposed that all members of the GMC’s Council (and indeed the councils of all the national professional regulatory bodies) should be appointed by the Public Appointments Commission and that elections by the profession for the medical members should cease. The BMA rejects this proposal as we believe that election to the Council is a means of ensuring the credibility of the regulator with the profession that it regulates. The least that we would accept would be election by the profession from a long list produced by the Public Appointments Commission. We will also be seeking to maintain the medical majority on the GMC and for it to be chaired by a doctor.

• Revalidation: As revalidation moves from a theoretical concept to reality, we understand that it will comprise two elements: relicensure and recertification. Relicensure will apply to all doctors and is designed to give assurances that the doctor continues to meet generic standards of practice. Recertification will apply only to doctors who are on the specialist or general practice registers and will be a process drawn up by the Colleges to assess a doctor against specialist standards. Clearly, it would be sensible if recertification could take place at the same time as relicensure, although the two have different purposes. The BMA is supportive of doctors being regularly reassessed, but will resist strongly any attempts to impose on doctors an unrealistic and time-consuming scheme further removing them from time with patients. There are many tools already available that, with careful adaptation, can be used to achieve much of what is required with much less disruption than is currently being proposed. We will also resist any efforts to introduce government targets into requirements for relicensing.