Proposals to investigate doctors with a health concern under ‘lack of competence’ could ‘endanger both patients and the doctor’, and ‘exacerbate’ their health concerns, Medical Protection has said.
The statement was made today (15 June) in response to proposals to remove ‘health’ as a ground for launching a fitness to practise (FTP) investigation, with the General Medical Council (GMC) expected to consider such cases under the ‘lack of competence’ umbrella instead.
Dr Rob Hendry, medical director at Medical Protection, said the organisation was concerned about the ‘potential unintended consequences that could arise’ from the proposal.
‘Removing “health” grounds and instead categorising doctors with a health concern under “lack of competence” grounds would be extremely demoralising and could exacerbate their health issue,’ he said.
‘It may also discourage doctors from seeking help at an earlier stage and this could endanger both patients and the doctor.’
Currently, the grounds for launching a FTP investigation include misconduct, lack of competence, conviction and health.
The DHSC’s proposals – outlined in its ‘Regulating healthcare professionals, protecting the public’ consultation which closes tomorrow (16 June) – would see health dropped as a separate ground for launching an FTP investigation, and would instead be ‘considered as part of an assessment of competence’.
During the initial stage of the proposed FTP process, regulators would have to determine if a concern raised meets the criteria for referral, before it progresses to case examiners.
The DHSC said that those cases which fall under the two grounds for action – lack of competence, or misconduct – will be referred onwards.
According to the proposal, a registrant being ‘unable to or has failed to provide care to a sufficient standard’ would be considered a lack of competence, which would include a health condition that ‘affects a registrant’s ability to practise safely’.
It said that it expects the reforms to free up regulators’ time, who would be able to handle health concerns ‘more sensitively’ outside of the FTP process.
Dr Hendry added that many doctors experience considerable stress when they are the subject of a GMC investigation, adding that this is ‘tragically demonstrated’ by the number of doctors who die by suicide each year while under investigation.
The GMC must continue to work to minimise the impact on the wellbeing of doctors under investigation, particularly those with a health concern at the outset, he said.
‘Investigating these doctors under “lack of competence” grounds feels wholly inappropriate and we believe “health” should be retained as a separate category.’
Medical Protection added that it hoped to see ‘lack of competence’ replaced with a more neutral phrase, citing that a doctor’s performance can be subject to organisational variables outside of their control.
It also called for the Government to deliver on its 2018 commitment to remove the GMC’s power to appeal FTP decisions, and to give the body ‘greater discretion’ in deciding whether and how to investigate an FTP decision.
Similarly, the Medical and Dental Defence Union of Scotland (MDDUS) described the proposal to remove health as a ground for investigation as ‘seriously retrograde’.
Stephen Henderson, head of dental division at MDDUS, said: ‘The mental health of our medical professionals is clearly a very important live issue.
‘To categorise ‘health’ as a lack of competence would be a seriously retrograde step to take.
‘The issue is also not just about registrants. Attending to and respecting registrants’ health is also good for patients and for the retention of doctors.’
This comes after the Medical Defence Union claimed that the same proposal could penalise the most vulnerable doctors and risk ‘undoing’ the GMC’s work in establishing sensitive and separate procedures for dealing with doctors in poor health
A proportionate approach
Charlie Massey, chief executive of the GMC, said: ‘Reform will allow us to be much more focused in deciding which cases we investigate, and how we do it – ensuring fairer and faster outcomes. It will give us better options for concluding cases in a way that takes account of the needs of all parties.
‘Defaulting to an adversarial panel hearing can be deeply stressful, not only for the doctor but also for the complainant. What we need is a more proportionate approach, where the course of action is determined by the case at hand.’
He added: ‘We do not agree with the proposal to remove adverse health from our existing grounds for fitness to practise action. Any reform to our procedures must protect and strengthen our ability to take proactive and proportionate action. Where there is evidence that health concerns might pose a risk to the public, it is right that they are handled sensitively to protect the public and ensure the doctor is supported.
‘We are not opposed to having our right of appeal removed. Until the government has decided how and when to bring in these changes we will continue to use our right of appeal to protect the public.’
A Department of Health and Social Care spokesperson said: ‘We want all healthcare professionals with health concerns to feel able to seek out and access the help they need.
‘The government will carefully consider all responses to our consultation to ensure the new legal framework allows regulators to handle any issue that impacts on a registrant’s ability to provide safe, effective care in a sensitive and responsible way.’