Professional negligence: Getting well soon?
There are two fundamental areas of reform currently ongoing in the regulation of the healthcare professions – namely, the separation of functions and the introduction of the civil standard of proof. The aims of each strand of change are fairly clear, but how they will work in practice has yet to be resolved.
The basic definition of a profession has traditionally been a self-regulated group of people, such as doctors or lawyers, exercising a particular set of skills. The extent of regulation was limited, in that if you had been permitted to join the group it was axiomatic that you understood what was expected of you. The few bad apples were dealt with quietly by their peers. However, in recent years the medical profession in particular has been subjected to vociferous criticism, accusing it of a tendency to protect its own at the expense of the public it serves.
The General Medical Council (GMC), which regulates doctors working in the UK, has transformed itself over the past decade in response to public pressure arising out of a sequence of very bad apples – most notoriously Harold Shipman. Historically, the GMC’s regulatory committees consisted of a majority of doctors and a few token lay members. These committees brought a valuable element of reality to a hearing, as at least one doctor worked in the same specialism as the defendant. But they were also perceived as too willing to make allowances for human error at the expense of public confidence, thereby undermining the fundamental ethos of the profession.
More recently, GMC committees adjudicating professional regulatory cases have been more representative of the broader multicultural society the profession serves, with a significantly larger lay representation. The downside for defendants is that, not uncommonly, there will be no one on the panel with experience of the specialism in which the accused doctor works. Defence lawyers will argue that this puts the defendant at a disadvantage because of a lack of appreciation of the day-to-day problems and pressures of the job that provide a proper context for the allegations. Others say this is outweighed by the independence and lack of bias of the panels, ensuring a fairer outcome overall.
However, the argument has moved on another step towards the separation of functions, so that the GMC will continue to regulate the medical profession – for example by providing up-to-date guidance on issues of consent, taking into account recent new law on mental capacity. But the GMC will in due course cease to act as the investigator and prosecutor of its own members.
Under the new Health and Social Care Act, currently in its final stages in Parliament, the GMC’s regulatory functions will transfer to a new Office of the Health Professions Adjudicator from 2011. The GMC and other professional healthcare regulators will in future manage access to their professional registers and set the standards for their profession.
Other healthcare professions are also reorganising their professional bodies to produce clearer separations of functions. For example, the Royal Pharmaceutical Society of Great Britain combines its regulatory role with setting professional standards, education and representation of the profession – in effect the roles of the GMC, medical Royal Colleges and the British Medical Association combined.
The other key area of change at the GMC is the move to a civil standard of proof in cases of professional misconduct. Facts have to be proved on the balance of probabilities, rather than beyond reasonable doubt, setting the bar for a finding of professional misconduct much lower. Professional regulatory bodies are anticipating a significantly increased workload, due in part to more complaints overall and partly because the lower bar means more cases will have to proceed to full hearings, rather than being disposed of at the investigation stage based on a paper analysis of the prospects of a successful prosecution.
Professional regulatory lawyers are concerned about how the new civil standard of proof is to be implemented. It remains unclear how a ‘sliding scale’ that depends on the seriousness of the alleged wrongdoing is going to work in practice. The GMC’s guidance speaks of more serious allegations needing more cogent and compelling evidence. Such case law as exists in other jurisdictions suggests that tribunals should take into account both the seriousness of the allegation and the potential consequences of the factual finding. The uncertainty inherent in the changes will be difficult for adjudicators, prosecutors, defence lawyers and defendants alike, until the courts have been asked to provide clear guidance on how the new standard of proof should be applied in practice. Expect some early challenges. n
Julie Austin is a partner at medical law firm Hempsons
