Council meeting December 2008 - Item 6c - Securing Further

Document Sample
Council meeting December 2008 - Item 6c - Securing Further Powered By Docstoc
					2 December 2008



To consider

Securing Further Improvements to the Fitness to Practise Procedures


1.       A further tranche of possible changes to the statutory framework for the
fitness to practise procedures. If Council agrees, they will be discussed with the
Department of Health (England) for inclusion in the legislative reform programme.


2.     To agree the proposed amendments to the Medical Act 1983, and to the
Fitness to Practise Rules, as the basis for discussion with DH(E) (paragraphs 10-20
and Annex A).

Further information

3.   If you require further information about this paper, please contact us by email: or tel. 0161 923 6602.

4.   The reformed fitness to practise procedures were introduced in
November 2004.

5.    The reformed procedures have delivered:

      a.    A single set of processes and procedures that allows us to consider
      concerns about fitness to practise in a comprehensive way.

      b.     A clear separation of functions between the investigation stage and the
      adjudication stage.

      c.     Enhanced sharing of information with employers and contractors at an
      early point.

      d.    The power to issue warnings for concerns that fall below the
      impairment threshold.

6.    Since November 2004, we have continued to enhance the fitness to practise
procedures. For example, in December 2007 we extended the power to dispose of
cases consensually, in appropriate circumstances.

7.     In February 2008, Council agreed amendments to the 1983 Act and the
Rules. They concerned:

      a.     Our powers under rule 12 to review investigation stage decisions.

      b.     A more flexible framework for performance assessments.

      c.     Delegating certain decisions about review hearings to the Registrar.

8.     DH(E) has set out a programme of legislative reform, including provision for a
number of Section 60 Orders to implement changes to the 1983 Act. The Section 60
Orders will reflect a themed approach, covering revalidation, governance, and other
issues, in turn. They will provide an opportunity to amend the 1983 Act to support
further changes to the Fitness to Practise Rules.

9.    The proposed amendments were considered by the Fitness to Practise
Committee on 3 September 2008. The Fitness to Practise Committee approved the
proposed amendments and agreed that they be brought before Council for approval.


10.   We have identified a number of areas where improvements are required.

11.   The proposed amendments arise from legal advice in relation to individual
cases and from our operational experience. A number will address inconsistencies in
the 1983 Act.

12.    The complete set of proposed amendments is at Annex A. Annex A
differentiates between changes that will require an amendment of the 1983 Act and
those that can be effected by amendment of the Rules without amendment of the
1983 Act.

13.    The more substantive amendments are discussed below.

Revocation of Orders for suspension

14.    Section 35D of the 1983 Act provides that, when a doctor is subject to
conditions, an FTP panel may revoke the conditions with immediate effect. The
proposed amendment to Section 35D, numbered 1 in Annex A, would introduce a
similar provision for cases in which a doctor is suspended. This would allow, for
example, a suspension order to be lifted when the panel considered that it was
appropriate to replace the period of suspension with conditions.

Performance assessments

15.     The operation of Rule 7(6) concerning the investigation of allegations and
Rule 17 (7) and (8) concerning the procedure before an FTP Panel means we are
restricted in the action we can take when doctors refuse to co-operate with a
direction to undergo a health assessment at any point of the process or a
performance assessment early on in the process. Currently, we cannot refer such
cases to an FTP panel on the basis of that failure but only on the basis of
impairment. The proposed amendment, numbered 3 and 9 in Annex A, would allow
the Registrar to refer a doctor to an FTP panel on the basis of their failure to comply
with a health assessment or performance assessment, regardless of the point at
which the failure occurred.

Serial or vexatious complaints

16.     Rule 4 currently makes no provision for dealing with serial or vexatious
complaints. The proposed amendment to Rule 4, numbered 7 in Annex A, would
provide the Registrar with a power to filter out serial or patently vexatious complaints
on initial consideration and on referral of allegations. This is designed to deal with
the exceptional circumstances where a complainant may issue an unreasonable
number of complaints about a single doctor, or more than one doctor; or may
complain about a doctor other than in connection with a doctor’s practice or conduct.
Such complaints are exceptional but they can consume significant resources and
cause undue stress for the doctors involved. The power would be used rarely and
criteria will be developed for use of the proposed new sub-rule, which will need
careful drafting.

Five year rule

17.    Rule 4 currently provides no power to carry out preliminary investigations
before a decision is taken whether or not a case should proceed under the five year
rule. The proposed amendment, numbered 8 in Annex A, would provide an express
power to carry out such preliminary investigations. This will enable us to make
appropriate enquiries when, for example, further information is required to establish
whether the five year Rule test has been made out. This should ensure that decision
makers are better informed.

Undertakings agreed at the Adjudication stage

18.    The rules currently make no provision for the removal or amendment of
undertakings agreed with FTP panels. The proposed amendment to Rule 10,
numbered 10 in Annex A, addresses this weakness. The proposed amendment will
extend the Registrar’s power to lift or vary undertakings. In February 2008, Council
agreed that such decisions should be taken by the Registrar pending a change of the

Review of Interim Orders

19.    The rules currently provide for interim orders to be reviewed by an Interim
Orders Panel. The proposed amendment, numbered 2 in Annex A, will introduce
provisions for the administrative review by the Registrar of interim orders, when the
doctors have confirmed that they are not seeking to challenge the extension of the
existing order. The requirement for a meeting of the Interim Orders Panel in those
circumstances will be removed. The change is consistent with the proposed
amendments to the Registrar’s powers in relation to review hearings, which Council
agreed in February 2008.

Cancellation of referrals to FTP panels

20.    Rule 28 provides a power, exercised by a member of the Investigation
Committee, for the cancellation of referrals to an FTP panel, including when there is
no longer a realistic prospect of establishing impairment. The proposed amendment,
numbered 14 in Annex A, will amend the power to provide for cases, in certain
circumstances, to be remitted to the case examiners to consider inviting the doctor to
accept a warning, to agree undertakings or to reconsider the allegations about the
doctor’s fitness to practise.

      Recommendation: To agree the proposed amendments to the Medical Act
      1983, and to the Fitness to Practise Rules, as the basis for discussion with
      DH(E) (paragraphs 13-19 and Annex A).

Next steps

21.   For those changes that require amendment of the 1983 Act, we will discuss
with DH(E) their inclusion in an early Section 60 Order.

22.   For those changes that do not require amendment of the 1983 Act, we will
consult key interests on amendments to the Rules.


23.    The proposed amendments are unlikely to have significant resource
implications. The delegation of powers to review interim orders in certain
circumstances is likely to lead to some savings. As the cases to which the delegation
of power will apply will depend on the doctor’s agreement to seek no change to an
existing interim order it is not possible to quantify the exact level of such savings. We
operate approximately 22.5 IOP hearing days per month of which approximately
13.5 are review cases. An order is reviewed regularly, usually two or three times a


24.   We have completed an Equality Impact Assessment and will keep the
proposals under review as our proposals develop.


Shared By:
Description: Council meeting December 2008 - Item 6c - Securing Further