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The November issue of The Doctor carried an account of a GP practice’s experience of NHS England performance procedures. The issue is set to be discussed at this week’s conference of England LMCs. A member of the LMC who has put forward the motion, explains the LMC’s concerns.
All GPs are aware of the risks of a GMC referral and of medico-legal complaints. Thankfully, most doctors will never face a GMC hearing, and medico-legal risks can largely be reduced by defensive practice and good record-keeping. However, one of the most serious risks to practice, and probably the least widely recognised by doctors, is that of an NHS performance investigation.
Every NHS region has medical directorates that have the power to investigate individual GPs and practices to the extent that they deem necessary. All GPs, whether partners, salaried or locums, are obliged to cooperate with the investigation process. In cases reaching the GMC, clinical evidence will have been collected by NHS case investigators. In less serious cases NHS directorates may impose restrictions on practice, refer for clinical assessment by NCAS (the National Clinical Assessment Service) or suspend doctors.
Because investigations are conducted and concluded with extreme confidentiality, there is a low level of awareness of these in the GP community. There are essentially two types of GP practice: those that have experienced a NHS performance investigation, and those that are unaware that they could experience one.
An NHS performance investigation can be triggered by an adverse incident or by local monitoring of performance and quality of care. An investigation may also result from a complaint made by anybody working in, attached to or associated with a practice. This would include clinical, administrative and managerial staff, pharmacists and community staff (such as health visitors, midwifes or district nurses). In addition, patients and/or their relatives can also bypass normal practice complaints procedures and complain directly to the NHS. Any individual making a complaint may choose to remain anonymous, if that is their wish.
Clearly there is a balance to strike, and it is vital that doctors, staff and patients are able to raise serious concerns about care and standards in NHS services – particularly if internal or local procedures have not dealt adequately with a concern. However, there is also the potential for individuals with a grievance to have a devastating effect on a doctor or practice.
The Toolkit for Managing Performance Concerns in Primary Care sets out how concerns should be managed. This requires clinical commissioning groups to refer ‘all complaints or concerns received about a named clinician’ to NHS directorates, which ‘must all be considered and assessed’. To ensure a consistent process ‘there must be no pre-screening of concerns’ for example, by staff with local experience and knowledge exercising discretion or liaising with practices and clinicians.
Directorates therefore face a binary choice: to investigate or not to investigate. Clearly not all concerns that are referred are acted on. Clinicians will not necessarily even be informed that complaints about them have been received and considered. However, all concerns will be retained by directorates and can accumulate over time, perhaps revealing a pattern of complaints. Concerns relating to attitude, conduct or performance would be considered particularly significant.
The structure of the service is set out in the Framework for Managing Performance Concerns in Primary Care. Each NHS Directorate has two key panels dealing with performance management: PAGs (performance advisory groups) and PDLPs (performers list decision making panels). They have quite distinct roles.
PAGs operate as ‘screening’ panels. These consider concerns about clinicians and instruct investigations. In some cases, they can agree voluntary undertakings for ‘low level’ concerns, including referral to occupational health, agreed conditions on practice, a local action plan (such as mentoring, supervision or support) or referral for assessment by the National Clinical Assessment Service. PAGs are required to refer serious concerns to PLDPs. Practitioners cannot appeal against the decision of PAGs.
PLDPs are higher level panels that take action under performers’ list regulations. These can, in addition to the options above, suspend a clinician or refer them to the GMC. Most doctors will be unaware of the high level of collaboration and information sharing between NHS directorates and the GMC. As a regulatory body the GMC does not itself undertake detailed investigations, and relies on the findings of NHS investigations. Practitioners have a right to appeal against PLDP decisions and to take these to tribunal.
PAGs typically meet monthly, and it is therefore inevitable that delays occur. It takes time to receive and consider complaints, make a decision and then plan and organise an investigation. With monthly meetings, many weeks may elapse before the next step in a decision process can be taken. PLDPs would typically be arranged as and when required for particular cases.
National guidelines specify that both PAGs and PLDPs should have four voting members: a senior NHS manager, another NHS manager with experience in primary care, a lay member and a GP (usually a LMC representative). Notably the guidelines state that the GP member is not present to represent the doctor under investigation, but is instead expected to act as a ‘representative of the specialty’.
However, local arrangements may differ. For example, locally PAGs have the following voting members: two deputy medical directors, two senior NHS managers, a lay member, a senior nurse manager and a senior pharmacist. Two LMC secretaries also attend in an advisory, non-voting capacity.
Case managers (typically deputy medical directors) handle the day-to-day work of cases and manage case investigators. They present a summary of case investigators’ reports to PAGs.
Case investigators visit practices, interview practitioners and collect evidence, which will be ‘referenced against current national or local guidance and standards’. The case investigator’s role is to identify the facts and weigh the evidence around the circumstances giving rise to the concern, and to provide a report for the PAG. Their reports aim to provide commentary on how the performance of the GP compares with those working in similar circumstances.
Investigators therefore not only collect evidence, but make their own judgements based upon the evidence. Their opinions will typically be accepted unequivocally by PAGs, whose lay and managerial majority have absolutely no clinical experience. This is an extremely powerful role, which will determine the fate of colleagues and practices. It is quite remarkable that this can be undertaken by individuals that have undertaken two days of training, without testing or assessment. Ultimately, the judgements in these reports are not based on a professional consensus, but on the opinion of single doctors.
It is unclear what, if any, protection there is in the process to guard against investigators that might themselves be flawed or biased, or who apply unreasonable standards.
Investigators follow terms of reference set by the PAG and the case manager. These set out the issues and define the specific matters to be investigated. The Terms are intended to set clear boundaries and define both the methods and timescale for the process.
They will also set out the required standards. The terms can include, for example, the requirement that practices will be ‘NICE-compliant’. This is an extremely high standard to achieve, and a worrying development. NICE (National Institute for Health and Care Excellence) guidance has always been intended as advisory guidance to support best practice, rather than as a compulsory standard against which to judge performance.
It may perhaps seem paradoxical that a performance management program should assess against anything other than excellence, particularly in response to a complaint or concern. However, a program that judges clinical performance against the gold standards of ‘best practice’ ignores two realities: firstly, no GP in any practice will ever achieve the highest standards all of the time; and secondly that mistakes, errors and omissions occur in even the best practices some of the time.
PAGs are intended to judge achievement against typical standards of practice, using the ‘Bolam principle’, where a health professional is not negligent if they act in accordance with a practice accepted at the time as proper by a responsible body of medical opinion. However, panels lack clinical expertise and will rely absolutely on the opinion of the case investigator.
Panels operate on a civil standard of proof, which means ‘a balance of probabilities’. Evidence is weighed and anything that seems more probable than improbable can be taken as true.
When instructed, a case investigator will visit a practice to collect evidence, possibly over the course of several visits. This may include viewing patient records, hospital letters, complaint letters, audits, witness statements, practice policies and procedures, and can include emails, social media posts and even CCTV or telecommunications data.
They may undertake a random case review, with assessment of a random selection of consultations. Evidence may also be collected at interviews with clinicians, members of staff or other relevant individuals, with the provision of signed statements by those involved.
Clinicians who are interviewed as part of an investigation have the right to be accompanied, for example by a representative of their medical defence organisation. It is strongly advisable for clinicians to cooperate with the interview, as this is one opportunity in the process for them to set out their side of the case. A refusal to cooperate would invariably be a harmful strategy.
After collection of the evidence it will then take time for case investigators to write and compile detailed reports (with evidence referenced to the required standards), and then for drafts to be shared with the practice and checked for factual inaccuracies, before final reports are submitted to the PAG.
If further concerns are identified during the course of an investigation, these then become the focus of a new investigation. In this case, new terms of reference would be drawn up, and new case investigator/s appointed. Again, this would take time to organise, for the review visits to take place and for another final report to be provided to PAG for consideration.
As a result, PAG investigations may take a very long time to conclude. Much of the harm that practices experience is a result of this extended duration. While the process continues, a practice will experience ‘investigation blight’ and recruitment may prove impossible.
The stress for the GPs and staff involved can be very considerable. Resignations, retirements and sickness can compound the problem, and the resulting high workload plus the financial impact of sickness pay and locum costs can quickly cripple a practice.
Investigations are currently structured to deal with all concerns in a highly rigorous manner, consistent with the onward referral of every case to the GMC or police. However only a minority of cases have this outcome. It is unacceptable that a process which in most cases has remediation and support as a goal can be, not just harmful, but actively destructive for those affected.
There must be a fast track alternative to full formal investigations, particularly where concerns are not disputed, with the goal of rapid resolution and access to support. Clearly, this does not rule out the potential for escalation if major concerns are uncovered.
This would minimise the unintended harm of existing procedures, reduce costs and the wastage of resources, and increase the capacity of directorates to deal with the most serious cases quickly and effectively.
As a regulatory body, the GMC is transparent about its activities, such as the number of doctors referred to hearings each year. It publishes information on its structure, functions, policies and procedures. The GMC’s strategy is set by its council, its operational management by its executive board, and it is accountable to the Professional Standards Authority.
In contrast, the role of the NHS in managing performance investigations is shrouded in secrecy. No figures are published on the annual number of complaints received, their nature or their source. No public information is available on the number of performance investigations undertaken per year, or over recent years. It is unclear if there is any bias against black or minority ethnic doctors compared to white doctors. Likewise, no analysis is published on the outcome of investigations, their average duration, their impact on services or their cost.
Policy and procedures are developed behind closed doors, without public or professional consultation. Strategy and operational management are set by NHS managers without external oversight. Standards are applied without professional engagement. Ultimately the service is unaccountable, and free of any independent scrutiny or control.
Therefore, while the work of NHS directorates in monitoring and enforcing safe and appropriate standards of care and probity is absolutely vital, the service must be seen to be both transparent and accountable in its functions and fair and proportionate in its activities. In due course, there must be independent review and oversight of these roles.
This service operates at the boundary of performance management and professional regulation. NHS medical directorates represent the interests of government as an employer. Staff and doctors working for the directorates are NHS employees working to NHS rules and procedures. However, investigations assess and enforce professional performance with reference to both NHS standards and policies (such as NICE guidance and prescribing guidelines) and professional standards developed by the Royal College of GPs and the GMC.
NICE and other clinical gold standards are not benchmarks to be used to assess minimum acceptable standards of practice. The pressures that GPs and practices face are well-documented, and many practices are struggling to cope with workload. UK practices are simply not resourced to deliver gold standards unerringly, and it is unjust to assess them on this basis.
If clinicians are required to deliver care to these standards, and are being actively assessed against these standards by NHS directorates, then practices clearly require increased resources to deliver these reliably and consistently.
A fair but rigorous system would establish the range of real-world achievement by GPs in a wide sample of typical practices and then judge against this standard, taking any difficult or challenging circumstances into account. In March, the UK LMCs conference voted to establish real-world benchmarks that reflect current normal standards of clinical practice, and to commission research to study the impact of NHS investigations. The results of this work are awaited with interest.
NHS documents currently set out contradictory guidance for performance investigations. The NCAS document, How to Conduct a Local Performance Investigation, and a more recent document Protecting Patients, Supporting Professionalism, Improving Quality: Addressing Concerns about Medical Practice describe an approach that could be described as rigorous but fair.
These focus on communication and engagement with the practitioner, local resolution when appropriate and short timescales to completion.
However, the above guidance is no longer followed by NHS directorates. The Toolkit for Managing Performance Concerns in Primary Care contradicts this guidance, and specifically forbids any pre-screening of concerns or informal resolution.
It is essential that clinicians have clarity about the procedures that operate and the standards that are applied. National guidelines must be revised and redrawn, with the engagement of and in consultation with the profession, to provide clear and unambiguous guidance for doctors and directorates.
Case investigators currently have a dual role both of collecting evidence and of making judgements based on their findings. Given the risk of bias and error by an individual, consideration should be given to a separation of these two roles. Case investigators could continue to collect evidence in a rigorously impartial manner, with the evidence then subject to review by an independent panel.
Representatives of LMCs sit on PAGs and PLDPs, and provide much-needed clinical balance and insight into the work experiences of typical GPs. National guidance advises that they have a vote on panel decisions, but in some areas they do not. LMC officers have an essential role representing GPs facing performance procedures. It is vital that they are able to carry out this role strongly, effectively and independently.
Most GPs remain unaware of the risk of NHS performance investigations, or of the standards that they would be required to meet if investigated. All practices are potentially at risk of referral and many – perhaps most - would fail assessment in some aspects. The consequences can be extremely serious. Therefore, a GP referred to an NHS directorate for any concern should treat the referral with the utmost seriousness and seek the advice of their LMC and medical defence organisation without delay.
Martin Breach is a member of mid-Mersey LMC, which has put forward a motion about NHS England performance management procedures in primary care, to be heard at the conference of England LMCs on Friday, November 23.
The motion directs the BMA GPs committee to work to ensure that there is effective independent oversight and review of the procedures, including performance investigations and the functions of PAGs and PLDPs.
Read our account of the impact of an NHS England investigation on a GP practice
At last someone fighting against the process rather than supporting individual cases. Way to go, what a great article!
Such a frightening state of affairs. As someone in the middle of a massive investigation based almost entirely on managerial misunderstanding of contacts, arbitrary opinions, unsubstantiated accusations and made up "facts," I have far too much experience of these groups. Ultimately, i wish i had not caused hurty feelings to the case manager by asking for evidence to support their allegations and challenging the the allegations which i could easily prove to be untrue. I suspect this is the real underlying reason for their cruel and bizarre behaviour.
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