Sprince and Laing

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Disciplining Doctors: 'Seriously Deficient Performance' under the Medical (Professional Performance) Act 1995

Alan Sprince LL.B

Lecturer
The Faculty of Law
The University of Liverpool
Fellow of the Institute of Medicine, Law and Bioethics

Judith M Laing LL.B, Ph.D.

Lecturer
The Faculty of Law
The University of Liverpool
Fellow of the Institute of Medicine, Law and Bioethics

Copyright © 1997 Alan Sprince and Judith Laing.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

Against the backdrop of mounting public concern as to poor standards of performance in the medical profession in the U.K.,⁽¹⁾ Parliament enacted the Medical (Professional Performance) Act 1995 (the Act) (see Marquand 1996). The Act came into force in July 1997,⁽²⁾ introducing a new power for the General Medical Council (the GMC) to discipline doctors whose 'performance' is found to be 'seriously deficient'. This note considers the scope of the Act, its place in the medical profession's self-regulatory system and its potential for raising standards of medical practice in the UK.

Introduction

While medical practitioners' 'performance' has long since had to face up to the scrutiny of the civil (see Brazier 1992, chapter 6)⁽³⁾ (and, occasionally, even the criminal) (see Harvey 1994) courts, it has traditionally only been sanctioned by its professional body, the GMC, where it amounted to 'serious professional misconduct' (Medical Act 1983 s 36). This particular standard came to be interpreted narrowly, with qualifying conduct restricted to the extreme end of the misdemeanour spectrum, such as a criminal conviction or sexual promiscuity/adulterous behaviour with a patient (see Smith 1994, Chapter 4; Samuels 1994). The GMC's new jurisdiction under the Act does not replace its 'serious professional misconduct' remit, rather it sits alongside it, embracing less serious breaches and general patterns of poor performance, where doctors regularly fail to provide an acceptable standard of medical care. In short, the new jurisdiction is intended to have less to do with the GMC's traditional 'punishment' territory and more to do with much broader quality enhancement initiatives. This note will briefly outline the main provisions of the Act and speculate as to their likely effectiveness as a means of regulating the conduct and raising the standards of practice in the medical profession in the UK.

The GMC and the Scope of the Act

The GMC is the governing body of the medical profession, existing to protect patients and the public interest by regulating and guiding the medical profession. It has a mixed professional and lay membership⁽⁴⁾ and is wholly independent of Government. It seems, therefore, to enshrine fundamental principles of professional self-regulation. It also governs medical education and maintains a register of qualified practitioners.

Of greater relevance in the context of this note, the GMC acts as the profession's disciplinary body, with powers to erase a doctor's name from the register, suspend them from it or make registration conditional upon, for example, further training. Such powers have traditionally been triggered in two sets of circumstances. First, the GMC's Health Committee hears allegations that a doctor is unfit to practise by reason of physical or mental illness. Secondly, and more controversially, its Professional Conduct Committee has, under the Medical Act 1983 s 36, dealt with allegations that a doctor has been guilty of criminal conduct or 'serious professional misconduct.'

As stated, the Act provides the GMC with additional powers to discipline a doctor whose "standard of professional performance...is found...to have been seriously deficient". It seeks to achieve this by introducing two new disciplinary committees, coupled with an elaborate system of formal performance procedures and extended disciplinary powers (GMC 1992).

The Committee on Professional Performance

Principally, the Act sets up a new committee called the Committee on Professional Performance (the 'CPP'), the jurisdiction of which is triggered

If the allegation is proved, the CPP has power to suspend the doctor's registration for a period of up to twelve months or to make registration conditional upon compliance with directions as to counselling or retraining. There is no power under the Act for the GMC to erase the doctor's name from the register. However, there is provision for the period of suspension to be extended for a further period of twelve months, or even indefinitely, if the extension is to follow a second successive twelve month period of suspension.

The Assessment Panel and the Assessment Referral Committee

Additionally, the remit of the CPP may overlap occasionally with those of the Assessment Referral Committee (the 'ARC') and the Assessment Panel, which are two other new bodies set up by the Act. The ARC determines cases arising from 'assessment reports' on a doctor's performance made by the Assessment Panel, where the doctor disputes the report's findings or the remedial measures that it proposes. If, subsequently, it transpires that the doctor has failed to abide by the decision of the ARC and the deficiencies remain unremedied, the case may then be referred to the CPP. Other than this scenario, it seems that the ARC/Assessment Panel and the CPP are intended to deal with separate strands of cases, albeit flowing from the same 'poor performance' source. The Assessment Panel acts as an initial filter, to screen cases where performance can be remedied consensually or, as noted, with the help of the ARC; whereas the CPP is called upon either where, as mentioned above, those Assessment Panel/ARP initiatives have failed or where, initially, the allegations of deficient performance are at the upper end of the deficiency scale and might call for alteration of the doctor's registration. The difference, though, is only one of degree, as both jurisdictions can be triggered only in cases of 'seriously deficient' professional performance, and the potential for confusion seems very real.

The Interim Suspension Order

Finally, the Act extends the powers of the GMC's Preliminary Proceedings Committee to make an interim order suspending a doctor's registration pending a hearing of their case, by amending the Medical Act 1983 s 42 to allow for a period of suspension of up to six (rather than the previous two) months (with provision for a further extension of up to three months at a time, should the case not have been heard within the six month period).

Likely Impact of the Act

Given that cases will only be able to be referred to the GMC under the Act from September 1997, it is difficult at this stage to predict how successful the legislation will be as a mechanism for disciplining doctors and maintaining (let alone raising) performance standards within the medical profession. Ostensibly, its emphasis on 'performance' (traditionally, thought to be the predominant remit of the civil courts) as opposed simply to 'conduct' (the GMC's conventional concern) is encouraging. It is, at the very least, express recognition that any public concern as to the inadequacies of the medical profession would rarely see the need to distinguish between the two concepts. However, this somewhat cosmetic initiative aside, it is suggested that the Act is itself 'seriously deficient' in several key respects.

First, and most fundamentally, it is surely axiomatic to the Act's chances of success that its provisions are clearly defined and articulated. It is self-evident that, in order to be able to maintain and raise standards of conduct, those standards should be as precisely delineated as possible, so that they may be known and aspired to by those whose performance they seek to regulate. However desirable such an objective might seem, in the event, it is one that the Act and its accompanying documentation seem more determined to resist than to accommodate. For, despite a plethora of seemingly related literature, there is neither definition nor reliable guidance as to what might constitute 'seriously deficient performance'. Indeed, this very concern is evident throughout the Parliamentary debates which preceded the legislation. For example, in the Commons, there was the pointed observation that

To similar effect, in the Lords, an amendment was tabled which would have enabled deficient performance to be measured against published performance standards and key performance criteria (HL Debs 1995-96a, col 876; HL Debs 1995-96b, col 477). The proposal was defeated, largely due to the difficulty of producing a definition which would be likely stand the test of time.

What specific guidance there is on the new provision is woefully inadequate. In June 1996, the GMC published its 'Position Paper', which included guidance on the meaning of 'seriously deficient performance'. As such, it expressly stipulated that it would amount to

This explanation does little to assist in predicting the current or likely scope of the jurisdiction. Rather, its breadth suggests that almost any type of conduct could potentially amount to 'seriously deficient performance', providing it is of sufficient gravity. Emphasising the predominant requirement of 'seriousness' may help in appreciating the underlying philosophy of the legislation, but it does so at the expense of clarity and guidance as to specific categories of behaviour that would enable the medical practitioner to stay one step ahead of the GMC. Instead, the provision leaves much discretion in the hands of GMC 'screeners'⁽⁵⁾ to determine, retrospectively and on a case-by-case basis, exactly what behaviour has been covered by the new Act. Moreover, the assessment that they make is, thereby, a purely subjective one, there being no objective yardstick by which the conduct may be judged and against which standards may be set and adhered to.

Attempts to elucidate clear principles or guidance from earlier (pre-Act) documentation prove similarly fruitless. For instance, the Consultation Paper issued by the GMC, which preceded (and, to some extent precipitated) the legislation, stated that "a pattern of poor performance" will be something which seems to the GMC "to be symptomatic of a pattern of seriously deficient daily practice' (GMC 1992, para. 6.1; see Stacey M 1992). This somewhat circular 'definition' is likely to be less than helpful. Again, it would seem that 'seriously deficient performance' will simply be whatever the GMC 'screener' thinks it should be viewing the circumstances ex post facto. This is far from satisfactory for reasons already noted.

The Consultation Paper envisaged that the Act would be used in situations where the doctor's performance was generally poor. To that end, it provided examples of constant cancellation of and late arrival for appointments or dangerous prescription practices (GMC 1992 Chapter 6). However, these examples were expressly stated to be "illustrative rather than definitive", an uncertainty compounded by the Paper's statement that the (Act's new) procedures are not intended to

Other material dealing with seemingly related matters ultimately provides little that might now usefully be drawn on by way of analogy in interpreting the meaning of 'seriously deficient performance'. Traditionally, the GMC issued detailed guidance as to the standards to be expected and maintained by doctors. This was enshrined in their so-called 'Blue Book', which outlined in some depth the basic standards to be achieved in the delivery of patient care. In particular, in its June 1991 'Blue Book', the GMC outlined the criteria necessary for proper 'conduct', noting that such a concept is

The Blue Book, however, was abolished in 1996 and was replaced by another document (GMC 1996a), which, by contrast, contains only rather vague and general statements about such issues as good medical practice, confidentiality and HIV/AIDS. The consequent problem that this causes for those ultimately charged with interpreting the Act is, ironically, presaged by the GMC themselves, whose 1992 Consultation Paper expressly stipulated that

A second concern about the Act is that, by placing the new regulatory powers within the remit of the GMC and by providing that the screening process will be conducted wholly in private, it inevitably reinforces the principle of self-regulation within the medical profession. It has been argued that less rather than more self-regulation is the preferable solution to the perceived problem of poor performance in that profession and that some form of external controls are necessary in order to ensure greater accountability. The Parliamentary debates preceding the enactment of the legislation are replete with such concerns, one Member observing that the system of self-regulation is nothing more than "institutionalised conspiracy" and that "the Bill does not offer openness, it offers the promise of openness which is entirely different" (HC Debs Session 1995-96, col 692).

A third concern is that, notwithstanding the recent increase in lay representation on the GMC (Department of Health 1996), the number of lay members is still disproportionately low in comparison with the total number of members representing the profession and medical education.⁽⁶⁾

Finally, the underlying system of Panels and Committees seems remarkably complex, with the interface between them difficult to envisage. Coupled with the above-noted privacy inherent in the new procedures, the Act may not go far in its attempt to engender public confidence (see Smith 1994, pp. 42-45). Indeed, such complexity and privacy may well deter potential complainants.

Conclusion

At this stage, it is difficult to conclude other than that the Act is little more than a gesture to allay public fears and bolster public confidence in the medical profession and the system that (self-)regulates it, a concern evident during the Parliamentary debates which preceded the legislation (HL Debs 1995-96a, cols 871, 879; HL Debs 1995-96b cols 495, 1488, 1491). Fundamental concerns have been noted. In particular, notwithstanding the GMC and Parliament's understandable sensitivity to the medical profession's traditional resistance to standardisation and adherence to the notions of autonomy and freedom of individual clinical judgement, the absence of a definitive objective yardstick against which to measure the type of behaviour which amounts to 'seriously deficient performance' is unfortunate. It seems incongruous that legislation supposedly geared to the active prevention of poor performance by doctors should be so bereft of guidance on the means by which they those doctors might prevent themselves falling foul of its provisions. That the Act (particularly if read in conjunction with other recent initiatives⁽⁷⁾) clearly signals an era of further Government intervention into the practices of the medical profession suggests both its future role and its current futility. For, in the light of the concerns noted, it is suggested that, without more, the Act's new provisions and procedures are unlikely to succeed in raising standards of practice within the medical profession in the UK.

Bibliography

Department of Health (1996) 'Public Role of General Medical Council to be Strengthened' (DoH Press Release 1996/26).

Department of Health (1997) 'Government Crackdown on Danger Doctors' (DoH Press Release 1997/199).

GMC (1992) Proposals for New Performance Procedures: A Consultation Paper (London: GMC).

GMC (1996a) Duties of a Doctor: Guidance from the General Medical Council (London: GMC).

GMC (1996b) Performance Procedures Position Paper No. 2 24 June 1996 (London: GMC).

Harvey A (1994) 'Doctors in The Dock: Criminal Liability for Negligent Treatment Resulting in the Death of a Patient' 16(2) The Liverpool Law Review 201.

Samuels, A (1994) 'Serious Professional Misconduct: The Judicial View' 34 Medicine, Science & Law 313-318.

Stacey, M (1992) 'For public or profession? - The new GMC performance procedures' 305 British Medical Journal 1085.

Smith, R (1994) Medical Discipline: The Professional Conduct Jurisdiction of the General Medical Council, 1858-1990 (Oxford: Clarendon Press).

1. See for example The Times, 16 January 1996, ‘The Medical courts that can try a doctors’ crimes’ - "Doctors are increasingly finding themselves in the ‘dock’ over standards of work or behaviour which fall below what the profession expects"; The Independent, 19th May 1992, ‘Doctors should be Disciplined for Poor Service’; The Independent, 3rd November 1992, ‘Doctor’s Discipline Code is Criticised’. Back to text.

2. Although the Commencement Order bringing the Act into force was signed on 1 July 1997, cases will not be referred under the new performance procedures until September 1997, allowing the GMC a sufficient period of time to prepare new rules and procedures. Back to text.

4. In 1996, it was announced that the public role of the GMC was to be strengthened. According to the accompanying press release, this measure amounted to further evidence of the Government’s commitment towards reinforcing the GMC’s powers and increasing public confidence in the system of self-regulation of the medical profession. It indicated that the appointment of 12 new lay members would significantly increase the lay representation in order to "inspire public trust". (Department of Health 1996) Back to text.

5. It has been provided that all complaints brought to the GMC’s attention will initially be screened by the ‘preliminary screener’, who will act as a filter to determine to what extent the doctor’s performance is seriously deficient. The screeners will be members of the GMC specifically appointed to undertake this task. (See further GMC 1992, paras. 7.2-7.5). Back to text.

6. Only 25 out of a total of 102 members of the Council are lay members. Back to text.

7. For example, the Government has announced that it intends to crackdown on temporary doctors who put patients lives at risk with the publication of a new code of practice governing the recruitment, employment and assessment of locum doctors. Furthermore, specific guidance has been issued on the system of ‘alert letters’ intended to warn hospitals about doctors and dentists whose performance has caused concern. Back to text.

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