Response to The Medical Practitioners Bill - Draft Heads of Bill

A consultation document from the Department of Health and Children

The current consultation

MPS welcomes the publication of the draft Medical Practitioners Bill which aims to reform the regulation of medical practitioners by enhancing the transparency, effectiveness and efficiency of professional accountability.

Proposals to replace the Medical Practitioners Acts 1978 to 2002 are long overdue and the current proposals are a significant step forward in achieving a modern and effective system of accountability.

In commenting, MPS is able to draw on its many years of experience of disciplinary and regulatory procedures in over 40 jurisdictions worldwide. It is in the interests of all concerned in healthcare – patients, doctors, regulators and government - to achieve a fair and robust process that is efficient, open and accountable.

In general MPS supports the planned increased structure and transparency of the Medical Council’s procedures. However MPS has concerns about the practicability of some of the proposals and highlights the need for greater clarification on matters of procedure. In particular, MPS is concerned to ensure that the procedures provide for a separation of powers between investigation and adjudication.

The MPS response to the draft Bill focuses on the following themes:

• Maintaining the confidence of the medical profession 
• Streamlined and efficient processes 
• Procedural fairness 
• Competence Assurance

Maintaining the confidence of the medical profession

Political involvement and oversight

The Medical Council’s processes assure the public of the quality of medical regulation and safety of medical practice. To succeed in its overriding objective of ensuring the protection of the public the regulator must retain the confidence of the medical profession.

MPS is aware of the grave concern amongst the profession about the proposals for political oversight and the empowerment of the Minister to give general policy directions to the Council (Head 9). The role of the regulator is to make judgments about the competence and conduct of medical professionals, unfettered by any political or other external factors. The public and the profession expect to see the Council making consistent and fair judgments irrespective of any shifts in the political agenda.

There is an international trend for medical regulatory bodies to become more accountable to external authorities. However the current proposals go beyond external accountability and there is a material risk that the political involvement as set out in Head 9 could be seen to undermine both the public and the profession’s confidence in the regulatory system.

Membership of Council

MPS strongly supports the principle of professionally-led regulation. Patients are at the centre of the healthcare system and their involvement in the regulatory process is crucial and must be combined with the professional knowledge of working doctors. It is essential to strike the appropriate balance between professional and lay members, appointed and elected, within the Council. The vast majority of doctors provide excellent care and they deserve to be treated fairly. They have a right to have their actions judged by those with the necessary expertise and knowledge of clinical practice.

In addition, MPS believes that the Medical Council is best placed to take the lead in the provision of training and education for practitioners at all stages. We are also pleased to see that the draft Bill includes provision for investigation of persons holding themselves out as doctors.

Streamlined and efficient process

Screening mechanism

Head 57 helpfully sets out the remit of the Council, though MPS believes that the definitions of poor professional performance and professional misconduct are too widely drafted and open to interpretation.

There will of course be a number of complaints received by the Medical Council which fall outside its remit, for example, the Council will not be able to order a doctor to provide a particular treatment to a patient and would not become involved in disputes of a personal nature simply because one party is a doctor. It appears under Head 59 that any complaint about a doctor will go before the Preliminary Proceedings Committee without undergoing a screening stage. We believe that without a mechanism to assist in filtering out inappropriate complaints, the PPC is likely to overwhelmed resulting in delay to the process. Greater effectiveness in the screening process will allow the PPC to properly concentrate on those cases which require scrutiny.

Mediation

The role of mediation and its timing needs to be clarified. MPS supports the use of alternative forms of dispute resolution, however if a complaint is not resolved by mediation, then the PPC should be obliged to consider whether there are sufficient grounds to refer the matter forward and not to do so automatically. We suggest that the guidelines be drafted at this stage.

Procedural Fairness

Public hearings

Under Head 67 a hearing before a professional conduct committee in general will be held in public. At present hearings are held in private and MPS is of the view that justification for this change is limited. Our experience in other jurisdictions, where similar hearings are held in public, is that the media has a tendency to report only the allegations or to sensationalise the evidence given during the course of the hearing with little or no report on the outcome, particularly when no finding is made against the practitioner.

Regrettably, the decision to hold hearings in public may effectively work to reduce confidence in the medical profession rather than to reassure the public that doctors are subject to a robust system of accountability. The current system has great benefits; other jurisdictions have changed this approach to their detriment.

We are pleased to see that Health Committee hearings will continue to be held in private. The doctor is entitled to the same duties of confidentiality as any other patient.

Standard of Proof

MPS recommends that there should statutory recognition that the criminal standard of proof is the standard upon which a doctor should be judged, as is currently applicable.

The effect on a doctor of being found unsuitable to practise is catastrophic both personally and professionally. Finding a doctor guilty of professional misconduct is a hugely serious matter which leaves an indelible stain on that doctor’s character and reputation, and can effectively end their career. There would be a real risk of miscarriages of justice if a lower standard of proof were to be applied.

Evidence and cross examination

Head 68 allows for evidence before the Committee to be received orally, by Affidavit or otherwise including live videolink, video recording, sound recording or other mode of transmission. Evidence should be given orally or by videolink only. The practitioner must have a right to cross-examine and if evidence is allowed by sound recording or Affidavit, such cross-examination is precluded.

Notification of charges

Under Head 66(1)(a)(ii) it is important that it is made clear on the face of the Bill that the specific allegations to be made against the practitioner should be notified rather than simply “the matter” that is the subject of the inquiry. The doctor must receive properly particularised charges in order to respond.
MPS's response to The Medical Practitioners Bill - Draft Heads of Bill, continued

Voluntary Erasure

Head 54(4) precludes the practitioner who is subject to a complaint or criminal conviction, from requesting removal from the register. However there will be occasions where the most appropriate course of action is to allow voluntary erasure. There is nothing to be gained by taking a doctor through a procedure when they are unwell, unable to practise or recognise that they should no longer practise. Preventing voluntary erasure in these circumstances will result in an unnecessary use of resources and with arguably no benefit to the public or to safe patient care.

Sanctions

The proposed heads relating to sanctions make no provision for a medical practitioner to make representations on appropriate sanctions. Equally, under Head 71 it is unclear whether the report of the Committee can make recommendations regarding sanction. It would seem sensible for the Committee that heard and reported on the evidence presented, to have the ability to recommend an appropriate sanction. Practitioners and their representatives should have the chance to make representations on sanctions before a decision is made by Council.

The ability of Council to decide that no sanction is appropriate should be explicit under Head 73.

High Court confirmation of sanctions

As currently is the case, the High Court’s confirmation is required before sanctions become effective. The High Court ratification of decisions may result in significant procedural delay, and whilst recognising the need for this stage, MPS recommends that a more streamlined process be established.

Matters arising outside the jurisdiction

MPS does not believe that it is appropriate or practicable for the Medical Council to investigate complaints regarding events which occurred outside the jurisdiction. Whilst acknowledging that the Council must be sure about the competence of the doctors currently on its register, we do not believe that the fitness to practice procedures are the appropriate forum for assessing such concerns.

Competence assurance

The medical profession generally welcomes the ability to demonstrate competence. Practitioners will have been through extensive training with rigorous assessments and the vast majority already demonstrate their firm commitment to continued professional development and training.

While endorsing the principle and philosophy of competence assurance, MPS has concerns about whether the plans are practicable and are able to be implemented effectively in such a short space of time. In would be unfortunate if the anticipated rapid implementation programme resulted in insufficient investment in human and financial terms. Early challenges to the procedure could result in the undermining of public and professional confidence.

There are two issues which, in our view, will determine the success of these procedures. The first is the explicit confirmation that all documentation will be exempt from disclosure under the Freedom of Information Act. In this regard we would recommend statutory protection is provided for all risk management incident reports to encourage learning from adverse incidents. The second is the need to ensure that protected time is available to engage in these procedures and that remediation and retraining are available. We would suggest that whenever conditions are imposed by the Medical Council that they are workable, that is that the Medical Council has the powers necessary to require employing and other healthcare bodies to facilitate rehabilitation.

MPS welcomes the Medical Council’s assurance that the assessment tool will be validated for the Irish context and used to establish Irish norms. We would caution against the use of assessors from other jurisdictions who will be unfamiliar with practice in Ireland. We feel it essential that further consultation should take place once the pilot project has been completed.

We are pleased to see there will be provision for us to nominate a doctor for the proposed Performance in Practice Committee.

MPS would be pleased to expand on any answers to questions posed in this consultation paper if that would be helpful.