Giving doctors the right treatment

There is little doubt that the recent highly publicised cases of Harold Shipman, Rodney Ledward and Richard Neale have greatly undermined public confidence in the means by which the medical profession regulates itself.

The long procession of women in the Ledward and Neale cases photographed outside General Medical Council (GMC) hearings after years of suffering shows just how long and cumbersome the procedures for dealing with misconduct can be. The fact that many of them suffered similar fates at the hands of these doctors only serves to underline that the procedures to prevent the abuse of these patients were too slow.

The Ritchie Report into the Ledward case highlights the importance of having effective mechanisms for detecting and acting on poor performance quickly.

The GMC struck off Ledward, but only after local health systems failed to prevent him harming patients over a 16-year period.

There have been a number of important measures considered by the GMC in order to remedy the situation and some have been introduced. The Medical Act 1983 (Amendment) Order 2000 gives the power to impose an interim suspension or conditions on a doctor's registration after an interim hearing and increases the period that doctors must wait after being struck off before they can apply for re-registration from 10 months to 5 years. It also provides that a practitioner's name may be erased from the register, or their registration suspended or made subject to conditions, if they are convicted of an offence abroad which would constitute a criminal offence if committed in the UK.

It is amazing that until July, a doctor's registration here would not be affected if they were convicted of a criminal offence abroad.

But these measures, while welcome, may be too little and too late to save public confidence in the profession's procedure for self-regulation. The measures fall short of the recommendations of the Ritchie Report, and while there are other measures under consideration it is important that the public recognises the differences between the measures being implemented and those still being debated.

The GMC is not a complaints body, it simply controls the register of doctors. Only the GMC can stop a dangerous doctor from practising. The extent of its power is to limit, suspend or terminate a doctor's registration. The register is the only way a patient can determine whether or not their doctor is fit to practise, and it is for this reason that the register has to be accurate.

The matters which were recommended in the Ritchie Report and are still under consideration by the GMC relate to issues such as the standard of proof required and the provision of adequate support for witnesses before, during and after the hearing.

These aspects are at the core of providing an effective disciplinary procedure which quickly detects and acts on poor performance.

The current standard of proof for the GMC Professional Conduct Committee is the criminal standard of beyond reasonable doubt. The argument is that when a doctor's career is at stake, nothing less than the criminal standard will suffice, as removal from the register does not simply approve the removal of somebody from a particular job, but effectively prevents them from practising in their profession anywhere.

This privilege is not afforded to the majority of the country's other workers, where employment law principles apply the the civil standard of the balance of probabilities. The result of applying the criminal standard is that hearings take much longer, with protracted arguments on admissibility of certain evidence. And because local inquiries employ the civil standard of proof, the GMC can be involved in re-investigating the same events that were looked into by the local inquiry.

The GMC can take action: when a doctor has been convicted of a criminal offence; when there is an allegation of serious professional misconduct; when a doctor's professional performance may be seriously deficient; or when a doctor with health problems continues to practise while unfit.

While there may be an argument for retaining the criminal standard of proof in misconduct cases, the argument for retaining this in cases which involve judgments concerning standards of professional performance or in relation to the health of a doctor, seem very weak.

The public has lost confidence in the ability of the GMC to have effective mechanisms for quickly detecting and acting on poor performance. The Government and the profession must now act without delay to restore this confidence.

Leslie Keegan is a barrister at 9 Gough Square.