Response to consultation document, 'Proposed changes to the Indicative Sanctions Guidance for Fitness to Practise Panels'
May 2008
Thank you for consulting the BMA on the GMC’s consultation document on Proposed changes to the Indicative Sanctions Guidance for Fitness to Practise Panels. Our response is split into two sections. Firstly, general comments on the proposed changes. Secondly, comments on specific sections of the Indicative Sanctions Guidance itself.
General comments
The BMA believes that the Indicative Sanction Guidance has proved to be a very useful tool for panellists since it was first published in 2001. We understand the need for an updated version due to new ethical guidance produced since its last revision in 2005, such as the revised Good Medical Practice (2006) and Maintaining Boundaries (2006).
While we believe that the reputation of the profession and its protection must be maintained, we are concerned that there seems almost to be more emphasis on this in the new Indicative Sanctions Guidance than on an individual’s guilt or innocence.
It worth noting how complex and time-consuming the fitness to practise hearings can be. If more of the preparatory work could be done before a hearing, this could save a lot of time in the hearing of evidence.
The BMA is content with the new guidance document, which is both comprehensive and clear.
Comments on specific sections of the Indicative Sanctions Guidance
Role of the Panel and the three-stage process
Paragraph 13
This guidance states that the allegations of impaired health, conduct, or performance need to be proved, that impaired fitness to practise may exist and that sanctions may be warranted. As the new civil standard of proof is shortly to be introduced, we suggest that reference be made to this in the document.
The purpose of sanctions and the public interest
Paragraph 14
This paragraph suggests that the purpose of sanctions is primarily to maintain public confidence in the profession as well as being punitive. The need to maintain public confidence should not draw the fitness to practise panels into making unreasonable judgements which disadvantage the individual doctor's position.
Paragraph 15
As written it seems that this admits the possibility that an individual could be found guilty if this best served the public interest. It must be stated explicitly that a doctor must first be guilty and be found to be so before public interest considerations can be introduced.
Aggravating and mitigating factors
The BMA is pleased that the existing section on mitigation has been expanded and improved and that reasons have to be given for decisions made by the Panel.
Expressions of regret and apology
Paragraph 28
While a practitioner would always wish to commiserate and express regret at the outcome when things go wrong, we are concerned that offering an apology may in some circumstances be construed as admitting negligence. We feel there is a great difference between apologising for outcome and apologising for causation.
Where no impairment is found
Warnings
Paragraph 36
It should be specified what ‘status’ warnings have, what they are for, what they mean, what they mean in respect of future disciplinary procedures and how long they stay on record.
It is important to give examples and justification, such as what kind of concern would be a significant departure from good medical practice?
Where impairment is found
Paragraph 39
The tariff of sanctions suggested is reasonable and provides clear indicators for the panel to assist it in imposing appropriate sanctions.
Undertakings
Paragraph 54
We agree that written undertakings can be to the advantage of both the doctor and the GMC, in that they avoid the need for a hearing. Efforts should be made to preserve the doctor’s confidentiality as far as possible and disclosure to “any other person” should only be in circumstances where there is a legitimate interest, for example a charity or voluntary organisation to whom the doctor offers services related to his/her employment or something similar.
Erasure
Paragraph 73
This statement is somewhat ambiguous as it refers to own interests but then implies patient interests, so it would be helpful to have some clarification. In terms of 'care of patient as first concern', there are circumstances where doctors would be considered negligent if they put themselves (and possibly others) in harm’s way in order to care for patients i.e. in a prehospital care situation. We wonder if such a circumstance has been taken into account when drafting this paragraph?
Sex offenders and child pornography
The BMA believes that it was a sensible decision to incorporate the Supplementary Guidance (October 2007) to the Indicative Sanctions Guidance for Fitness to Practise Panels (April 2005) on doctors “time expired” from the sex offenders register into the new guidance.
Review hearings
Paragraph 109
We are concerned that this seems to suggest that a period of suspension could be extended simply because a review panel could not be completed and could not be reconvened in time. It should be possible to anticipate those cases where there is greater complexity and which may require more time to resolve.