Controlling and Coercive Behaviour: Widening the Net
On 26 March 2015, the GMC published Sir Anthony Hooper QC’s independent review of how it engages with individuals who consider themselves to be whistleblowers. As part of the review Sir Anthony has made recommendations to the GMC on how to deal with referrals made about a doctor who has blown the whistle.
The GMC engaged Sir Anthony to conduct the review and provide advice in relation to individuals in the following categories, namely:
a) those whose fitness to practise is being investigated or determined under the General Medical Council (Fitness to Practise) Rules 2004; or
b) those who have reported such a concern to the GMC.
As the independent organisation which regulates doctors, the GMC has a key role to play in the health, safety and wellbeing of the public. It largely relies on reports from patients, but also to a greater extent, its registrants.
Sir Anthony’s review takes into account the recommendations made by Sir Robert Francis QC in his Freedom to Speak Up review published on 11 February 2015.
In order to conduct the review, Sir Anthony communicated with doctors about their experiences as whistleblowers.
To start off, the term whistleblowing does not apply to all disclosures. In the context of the health system, whistleblowing is where an individual raises an issue in the public interest due to risk of danger to others.
Patient safety is of paramount importance within the healthcare system. Patients are the core of why the healthcare system exists and therefore those that work within it should feel confident to raise concerns in circumstances where patient safety may be or is at risk. Quoting Dame Janet Smith in the Fifth Report of the Shipman Inquiry, Sir Anthony highlights the pivotal role that disclosures from those working in the healthcare system play:
“I believe that the willingness of one healthcare professional to take responsibility for raising concerns about the conduct, performance or health of another could make a greater potential contribution to patient safety that any other single factor”
The GMC sets standards which define its expectations of doctors. These standards set out the professional values, knowledge, skills and behaviours required of all doctors working in the United Kingdom. The core professional standards are set out in Good Medical Practice, which contains an entire domain called ‘safety and quality’. This domain encompasses the following guidance:
Contribute to and comply with systems to protect patients (paragraph 22-23)
Respond to risks to safety (paragraph 24-27)
Protect patients and colleagues from any risk posed by your health (paragraph 28-30)
We cannot discuss this topic without briefly touching on the professional duty of candour. In short, there is a requirement for doctors and other healthcare professionals alike to be open and honest with patients and their colleagues when something has gone wrong.
The GMC’s role
Sir Anthony states at paragraph 26 of his review:
“In the context of this review, my concern is that employers may use the process of making an allegation to the GMC about a doctor’s fitness to practise as an act of retaliation against a doctor because he or she raised concerns or, simply, as an inappropriate alternative to dealing with the matter in-house. If that happens, the GMC unwittingly becomes the instrument of the employer in its campaign against the doctor…”
Clearly the GMC must exercise its statutory duties where concerns about a doctor’s fitness to practise are raised, but it should also look behind the complaint, at the reasons for the referral in the first instance. Paragraph 80 of Sir Robert’s Executive Summary to his Report is pertinent here:
“It is important that professional regulators are aware of the context in which a referral for investigation of a medical professional is made, to ascertain whether there is any risk that it is a retaliatory referral. I am not suggesting that there should be no investigation because someone has been a whistleblower: there may be a perfectly good justification for doing so. But the regulators need to assure themselves that the referral is fair.”
Sir Anthony heard from doctors that some employers use referral to the GMC as a way to “persecute and intimidate whistleblowers”, which is completely unacceptable. What further concerned these doctors was the apparent lack of come-back after a complaint had been made about them. To tackle this, Sir Anthony proposes a number of steps to assist the GMC in recognising when referral is being used as an act of reprisal against a doctor.
If a referral is made in relation to a doctor who is a whistleblower, this factor must be considered by the GMC at the investigation stage. Whilst it may not be determinative, it may of course be highly relevant. When considering whether there is a realistic prospect of a panel being satisfied on the balance of probabilities of a finding of current impairment, the investigator should additionally consider the context in which the referral about the doctor was made, which should include what, if any, steps have been taken to deal with the concerns raised.
As such, where the referral about the doctor has been made by an organisation Sir Anthony recommends the following:
Sir Anthony’s proposals are clear and poignant; doctors that have blown the whistle for whatever reason must be reassured that allegations made against them will be appropriately dealt with by the GMC. Such reassurance begins with the establishment of a rigorous system to filter out purely reprisal based complaints. The healthcare system needs competent and confident doctors, who feel able to raise concerns where necessary. If the environment which allows them to do so does not adequately protect their own interests, patient safety will undoubtedly suffer. I would proffer an additional recommendation that the GMC should issue a statement to organisations where it finds that a referral has been made inappropriately about a whistleblowing doctor. If this is done in an open and constructive way, it may deter future reprisal allegations being made.
It will be interesting to see how the GMC takes Sir Anthony’s recommendations forward.
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