Revalidation Regulations Consultation GPC Comments
GMC CONSULTATION ON THE LICENCE TO PRACTISE AND REVALIDATION REGULATIONS 2012
BRITISH MEDICAL ASSOCIATION RESPONSE
Introduction
The BMA recognises the importance of this consultation in setting out in detail the process by which doctors will demonstrate that they are up-to-date and fit to practise. The principles that guide the regulations are appropriate although we would welcome further detail on how the regulations will be used in practice. Our primary concern relates to the scope of the powers of the Registrar and the process by which the Registrar will be able to withdraw a licence and vary a revalidation date.
We think a greater emphasis should be placed on employers and contractors of doctors’ services to provide accurate and timely clinical governance data. This should be reflected in these proposals and also form part of the criteria for theassessment of readiness later this year. The lack of progress in developing systems at an organisational level is a significant risk to the successful implementation of revalidation and the prospect of relying solely on individual doctors to produce supporting evidence for their appraisal is unacceptable.No doctor should fail revalidation due to the inability of their employing organisation to provide them with sufficient data to satisfy the necessary requirements.
Whilst the regulations suggest how all types of doctor could revalidate, we think that further work is required to demonstrate how the process will work for a significant number of doctors such as locums and those working in non-mainstream roles. To this end, guidance tailored to specific groups would be useful in allaying the concerns that many doctors currently have.
1. Are the principles upon which we have built the regulations, the right ones?
The fact that ‘flexibility’ has been defined as one of the guiding principlesis useful, given the wide-ranging nature of medical practice, workplace settings and contracts. As a new process, it is important, as the consultation notes,[1]that lessons are learnt during the initial implementation phase and improvements are made where that is appropriate. In the course of this initial stage, the GMC must communicate effectivelyany changes and support doctors through the process.
2.Are the arrangements set out in regulation 3 for withdrawing a licence to practise where a doctor has failed to co-operate with the revalidation process reasonable?
We think that the proposals provide too much power to the Registrar in making determinations on administrative grounds, such as those detailed in paragraphs 24 and 25.For example, the regulations appear to allow the withdrawal of a licence if there is a delay, for whatever reason, in presenting evidence. Given that the recent ORSA report has highlighted the lack of readiness within many organisations, we can envisage a scenario where the organisation does not provide relevant and timely governance data – whilst this would highlight a deficiency at an organisational and RO level, it would appear that the doctors affected could be held responsible. Such a course of action would contradict the spirit of paragraph 57, where a doctor would retain a licence in the event of a GMC decision to defer a revalidation date.There should be an acknowledgement within the regulations of the fact that employers have a responsibility to generate and provide doctors with evidence to support their fitness to practise.
In circumstances where the withdrawal of a licence is being considered, we also do not believe that the Registrar should be empowered to act independently. A process, by which all such determinations must be counter-signed after the Registrar has secured appropriate legal advice and consulted with, and achieved the agreement of, two GMC members – one medical and one lay member, would be more robust. Without this, we are concerned that a subjective judgement of a doctor’s engagement with the process and/or the quality and veracity of their supporting evidence, could be used as the primary means to revoke an individual’s licence even though there may be no evidence to demonstrate that there are concerns about that individual’s fitness to practise.
Regulation 3 provides for a 28 days' notice period for a doctor facing a withdrawal of their license to make representations to the Registrar. This seems rather short, particularly for example if there is a need to gather further supporting evidence from their employer. Consequently, there should be some flexibility with this deadline based on the circumstances of the individual case.
3. Are the circumstances in which a doctor may be required to revalidate as a pre-requisite to restoring a licence to practise appropriate?
Doctors that seek to avoid their professional responsibilities, as described in paragraph 32 as ‘gaming’,should be subject to fitness to practise proceedings. We believe that this is a probity issue.
4. Do you think that the powers in regulation 5(2) for the Registrar to vary a doctor’s revalidation date provide the right balance between flexibility to respond to doctors’ individual circumstances and the ability to respond to protect the public interest?
Where this regulation is employed, we would welcome further detail on the process that would take place before the Registrar could decide to vary a revalidation date. Our concerns are two-fold – firstly that the regulations appear to provide the Registrar with significant powers and that these could be usedto act independently. Secondly that the regulation could be used as a mechanism to satisfy public opinion against a specific group of doctors, such as those involved in the Cleveland child abuse scandal for example.From discussions with the GMC, our current understanding is that this regulation would primarily be used as the means by which doctors registering from overseas to provide quality assurance of their practice. We do not believe however that the consultation adequately reflects the need to ensure that any such determination is not unethically discriminatory.
As the consultation notes, having the flexibility to vary a revalidation date could also be used to target a particular group of doctors ‘where risks to patient safety have been identified’.[2] It is important that robust evidence is provided to support any decision to vary the revalidation date. For example, we have previously been concerned about the proposed introduction of exit reports for locums, as outlined in the RST’s organisational readiness exercise. This is despite the fact that there is no evidence to suggest that the clinical care of locum GPs requires more quality assurance than their partner or salaried GP colleagues.
Is the statutory minimum notice period of three months given to the doctor before a revalidation submission is due sufficient?
The consultation notes that doctors will be informed of their revalidation date on two separate occasions before the statutory minimum period comes into effect – at each revalidation, doctors will be given their provisional date for their next revalidation. They will also be given notice by the GMC nine months before the due date and asked to confirm their GMC details[3]. On this basis, the statutory minimum notice period is sufficient.
6. Do you think we should explore the possibility of allowing additional UK organisations to perform the functions a Responsible Officer in evaluating doctors’ fitness to practise and making recommendations to the GMC regarding doctors’ revalidation?
It is currently estimated that around 20,000 doctors may struggle to relate to a Responsible Officer and subsequently revalidate and so it is essential that steps are taken to address this. It was our understanding however that this group of doctors would be directed to their local Responsible Officer in the event that the nature of their work required a licence to practise. Extending the remit of these Responsible Officers to cover this group of doctors may be more appropriate, given that they work in designated organisations which should already have the necessary systems in place.
If the forthcoming DH consultation confirms that this is not the case however, it may be necessary to designate additional UK organisations provided that they meet the standards required of designated organisations. In this event, it would be helpful to know which additional organisations could be allowed to perform this function.
7. Are there other factors, besides those listed in regulation 5(15), which the Registrar should take into account when deciding whether a doctor should be revalidated?
This regulation should also include a reference to the fact that clinical governance information will need to be provided by the employer and subsequently considered by the Registrar when making a decision on revalidation.
8. Can you think of any reason why there might be adverse consequences for a doctor in deferring their revalidation?
No, provided that no negative inferences are drawn from a decision to defer and that the licence is retained, as outlined in the consultation.[4]
9.Do the regulations provide sufficient flexibility in the revalidation process to make it possible for all licensed doctors to demonstrate their continuing fitness to practise?
We continue to have concerns about how a range of doctors will be able to complete the revalidation process. This includes locums, doctors with portfolio careers, retired doctors, those in non-mainstream roles, those in non-clinical roles (such as medical managers) and those who do not work in managed organisations as employees, such as private practitioners. It also includes those who work overseas for a significant period during the revalidation cycle and whose overseas work may not conform to the current supporting evidence requirements.
These concerns have been reinforced by recent estimates from the RST that there may be upto 20,000 doctors who cannot immediately relate to a Responsible Officer under the current arrangements. As such, it is important that the GMC plans to write to all doctors shortly provide guidance on how these doctors can relate to a Responsible Officer and revalidate. The current options appear limited as a PLAB assessment would be inappropriate for the level of medical work undertaken for many of these doctors.
10.Are there particular groups of doctors for whom the Regulations would have an unfair or disproportionate impact?
Monitoring of the revalidation decisions by Responsible Officers should take place, with a view to identifying any local or national trends. This should facilitate effective learning and improvements to the process. The regulations could have a disproportionate impact on the range of doctors outlined in our response to question 9 due to the difficulties in obtaining sufficient supporting information and in relating to a Responsible Officer.
The Medical Profession (Responsible Officers) Regulations 2010 places a responsibility on designated bodies to nominate or appoint a replacement as soon as reasonably practicable, in the event that a Responsible Officer ‘ceases to hold that position.’[5]Where that individual is subject to fitness to practise proceedings,we would welcome further details on what impact that would have on the doctors that have previously been recommended for revalidation - in particular, whether this group of doctors would be subject to further scrutiny.
Other comments
Regulation 3
Regulation 3allows for a licence to be withdrawn in the event that a doctor has failed to pay any fee charged by the GMC in connection with revalidation. The consultation acknowledges that this relates to the small number of cases where a doctor may not have a Responsible Officer and the GMC must evaluate their fitness to practise. Given that universal access to a Responsible Officer should be one of the guiding principles of the process, failure to provide this function should not result in the costs failing on the individual doctor.
Regulation 5 (5) (a)
We understood that the GMC register would be annotated further to become a current description of the doctor’s revalidated practice. This regulation, and the description provided in paragraph 42 of the consultation[6], suggests however that doctors will not be required to provide information relating to their scope of practice. Conversely, paragraph 51 indicates that those doctors who do not have a Responsible Officer could be asked to provide information relating to their scope of practice.Whilst the revalidation notice sent to the doctor will specify the nature of the information that is required, it would seem more appropriate for the Responsible Officer to supply the information relating to all of the doctors that they have responsibility for.
Regulation 4 (5) (a)
The consultation notes the importance of allowing doctors to ‘continue to leave and re-enter the workforce without encountering unnecessary bureaucratic hurdles.’[7] This regulation states however that unemployment for 5 years or taking a career break or any other absence for that time period would mean having to sit an exam showing the doctor was competent.It is difficult to see how this would facilitate a return to work, particularly when it is considered in light of regulation 5 which places the responsibility for organising the revalidation process with the individual doctor. A greater emphasis on the role of the Responsible Officer is required - when a practitioner is informed of any decision by the registrar for example, the Responsible Officer should automatically be included in that information.
[1] Paragraph 20, Consultation on the General Medical Council (Licence to Practise and Revalidation) Regulations
[2] Paragraph 36, Consultation on the General Medical Council (Licence to Practise and Revalidation) Regulations
[3] Paragraph 38, Consultation on the General Medical Council (Licence to Practise and Revalidation) Regulations
[4] Paragraph 57,Consultation on the General Medical Council (Licence to Practise and Revalidation) Regulations
[5]Part 5 (3), The Medical Profession (Responsible Officers) Regulations 2010
[6] ‘Regulation 5 (5) allows the Registrar to specify in the revalidation notice sent to the doctor the information that is required in support of the doctor’s revalidation. For doctors with a Responsible Officer, this will comprise little more than confirmation of the doctor’s contact details and the details of the organisation in which the doctor works.’
[7] Paragraph 30, Consultation on the General Medical Council (Licence to Practise and Revalidation) Regulations