Back to school…but is it time for a change?
In modern times in the regulatory world, there has been a shift away from “rulebased” regulation towards a more flexible approach, often described as “principles-based” regulation. Principles-based regulation has been described as “where possible, moving away from dictating through detailed
prescriptive rules and supervisory actions…”01
A significant proportion of regulators have employed such “principles-based
regulation” for a number of years; for example the General Medical Council (GMC) expect registered doctors to comply with its “Good Medical Practice”
publication, which sets out high-level principles to which doctors must adhere. The Health Care Professions Council (HCPC) expect compliance with its “Standards of Performance, Conduct and Ethics”, which similarly prescribe general standards expected of its members when practising on a day to day basis.
Regulators in the financial and legal sector are also demonstrating a move away from prescriptive rules to principles with which their members must comply. The FSA have utilised this approach for a number of years. The Institute and Faculty of Actuaries published the “Actuaries Code” in 2010 and the Solicitors Regulation Authority (SRA) last year published its Handbook, setting out the standards expected of solicitors, in overarching terms.
Whilst such an approach can provide a useful means of flexibility, there is also an acceptance by regulators that such general “principles” could be deemed to be subject to interpretation; for example, acting in a patient’s best interests could, arguably, be interpreted differently by different practitioners in a given circumstance. To deal with such situations, often regulators must provide additional guidance. We can take the GMC’s “Good Medical Practice” as an example. One of the “principles” with which a doctor must comply is that “in providing care you must take steps to alleviate pain and distress whether or not a cure may be possible.” This is arguably subject to interpretation: how far can a doctor go to seek to secure that this principle is fulfilled? To provide greater guidance in this area, doctors are referred to a supplementary document, “Guidance on treatment and care towards the end of life”, which contains details of the GMC’s stance on how a doctor should approach a patient who may be at the end of their life.
Although principles-based regulation offers a desirable flexibility, there are of course areas where practical, moral or ethical issues come to the fore. When adjudicators appointed under a profession’s disciplinary scheme come to deal with a complaint against a professional, subjective or moral views may mean that there is a divergence of opinion on how such a complaint should be dealt with, and differing interpretations of the guidance in place. One person’s ‘misconduct’ may be another’s facilitation of a patient’s autonomy and right to choose.
The GMC has identified one such area as being that of assisted suicide, an area of law which has attracted a high degree of media publicity in
recent times. For example, at the time of writing, a High Court judge has ruled that the case of Tony Nicklinson, who has suffered from ‘locked in syndrome’ since suffering a stroke several years ago, should proceed to a full hearing, despite the Ministry of Justice arguing that the case be struck-out.
Mr Nicklinson launched a legal action seeking court declarations that a doctor
could intervene to end his ‘indignity’ and have a ‘common law defence of necessity’ against any murder charge.
Such cases highlight the breadth of public opinion in this area: some believe in the absolute sanctity of life while others believe that an individual should be able to exercise their autonomy and be allowed to die with dignity, and that assisted suicide in certain situations should be de-criminalised. Individuals in such a situation would naturally turn to those closest to them, or to their medical practitioners, to assist them. One can see the dichotomy: acting in a patient’s “best interests” may, by some, not mean keeping them alive at all costs, but may mean the facilitation of a peaceful and dignified death.
In response to recent caselaw, the GMC has drafted guidance for its Case Examiners and Investigating Committee Adjudicators (currently subject to consultation) as to how to deal with cases where a doctor has been accused of assisting someone to die, and a complaint has been made in this respect to the GMC.02
The GMC has recognised that assisted suicide is a thorny issue, and one which may not be easily analysed and digested through its Good Medical Practice principles and associated guidance. Although the GMC acknowledges that, to date, the number of cases involving allegations relating
to doctors assisting in a death investigated by the GMC is very small,03 given the increasing number of cases being heard by the High Court in this area, and the publicity surrounding Swiss suicide clinics, this number may increase. It therefore seems appropriate for guidance to be issued to its Case Examiners and Investigating Committees to prevent any difficulties when the GMC does come to consider such a difficult issue, and to standardise its Case Examiners’ and Investigating Committees’ approach to such cases.
No difficulties should arise when the CPS has taken a decision to prosecute a doctor under the Suicide Act 1961 and the doctor has been convicted; in such a situation the GMC has indicated that the case should proceed straight to a Fitness to Practise Panel for a full hearing on the facts. However, even in a situation where the CPS has decided that a prosecution against a doctor under the Act is not indicated (either where there is insufficiency of evidence or
where the public interest test is not met), the GMC must still consider whether the doctor’s actions may impair his or her fitness to practise. In summary, when considering any allegation the Case Examiner or Committee must decide whether there is a realistic prospect of establishing that a doctor’s fitness to practise is impaired to a degree justifying action on their registration. In making this decision they must have in mind the GMC’s duty to act in the public interest, which comprises (a) protecting patients; (b) maintaining public confidence in the profession and (c) upholding proper standards of conduct and behaviour. Both the test to be applied by the GMC’s initial adjudicators and the standard of proof applied by the GMC differs to that applied by the CPS.
Within the draft guidance, the GMC has indicated that allegations of encouraging or assisting suicide will normally give rise to a presumption of
impaired fitness to practise where (a) the doctor’s encouragement or assistance depended upon the use of privileges conferred by a licence to practise medicine (such as prescribing) or took place in the context of a doctor patient relationship (as distinct from providing advice or support for family members); (b) the doctor knew, or should reasonably have known, that their actions would encourage or assist suicide, or (c) the doctor acted with intent to
encourage or assist suicide. The distinction between a doctor acting in a personal or professional capacity is helpful; it is important to consider that a doctor may be swayed to assist a relative but would not contemplate acting in such a way in a clinical capacity. Such factors would have an important bearing on whether there is a realistic prospect of a finding that a doctor’s fitness to
practise is impaired due to his/ her actions.
The GMC’s decision to consult on this issue highlights a particular area where a matter is so emotive, subjective and open to judicial scrutiny that high level “principles” are perhaps not helpful. They are potentially subject to a level of interpretation which may mean that Case Examiners and Investigating Committees are at odds due to their own personal beliefs on this difficult issue; clarity is required as to how they should approach a case where the CPS has not taken the decision to prosecute. The GMC’s guidance for dealing with complaints about assisted suicide should, if endorsed, offer helpful standards to be applied, and lead to consistency in the event that future complaints about doctors assisting suicide arise.
The GMC’s Consultation document can be found on its website and responses are sought by 4 May 2012. The outcome of the consultation shall be interesting; it remains to be seen whether other healthcare regulators will follow suit.
01 The FSA, “Principles-based regulation –
Focusing on the outcomes that matter”, April
03 In the last ten years, there have been three
cases, one resulting from a conviction for
assisting suicide in British Columbia. None of
the cases arise from a conviction for assisting
suicide in the UK.
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