The GMC’s love of superfluous guidance continues unabated.
Like a barrister’s speech, Sanctions Guidance is unlikely to attract criticism for being too short. Unfortunately, the GMC and MPTS, now jointly responsible for Sanctions Guidance, have produced a document that is even longer and more detailed than the previous version. Much of the extra detail is unnecessary, and some of it is nonsensical. Moreover, it indicates a desire to address every type of point that might arise at the sanctions stage, leaving the tribunal with very little to work out for themselves.
It is worth reminding readers that there was a fundamental review of sanctions guidance in the summer of 2015, following the GMC’s 2014 consultation. Following this substantial changes were announced:
- The stated purpose of sanctions would be brought in line with the “overriding objective”, namely the protection of the public, reflecting amendments to section 1 of the Medical Act 1983;
- Guidance on certain mitigating factors. This concerned, in particular, the stage reached in the doctor’s UK medical career, remediation of concerns, references and testimonials, insight (with gems such as, “doctors are likely to have insight if they…consistently demonstrate insight”) and expressions of regret and apology;
- New guidance on determining length of suspension;
- A new section dealing with circumstances in which more serious action was likely to be required. This referred to the following factors: failure to raise concerns, failure to work collaboratively with colleagues, discrimination, abuse of professional position, sexual misconduct, sex offenders and child pornography, and drug and alcohol misuse when linked to misconduct.
When these prospective – and in many cases superfluous – amendments were announced, it was envisaged that a new version would be needed in December 2015. A new version was indeed produced for use from 31 December 2015. This was in force for just two months before the latest version, issued on 1 March 2016, was introduced.
Admittedly, some of the extra detail in the latest guidance is helpful. For example, there is a list of the other explanatory guidance documents, which touch upon specific areas. The list is useful for ensuring that relevant documents are taken into account. It is also rather daunting: there are 34 guidance documents listed, with 7 relating to confidentiality alone.
The new Guidance also contains a two paragraph section on how to consider statements from the doctor’s Responsible Officer (“RO”). This states that adverse inferences should not be drawn if no such statement is provided. This is helpful, and ensures a fair approach.
However, even this two paragraph addition contains unnecessary detail. For example, it includes the sentence, “the information contained within [the RO’s] statement should be weighed appropriately against the nature of the facts found proved“. It is difficult to see what else the tribunal would think they should do with the RO’s statement, other than weigh it against other relevant factors. This illustrates the approach of leaving absolutely nothing to the good sense of the tribunal.
This is by no means an isolated example. The previous guidance stated, quite sensibly, that: “If the tribunal receives a signed certificate of conviction or determination, unless it also receives evidence to the effect that the doctor is not the person referred to…., then it must accept the certificate as conclusive evidence…“Unfortunately, the new guidance contains this sentence in addition: “A tribunal can make an exception to this if it receives evidence to the effect that the doctor is not the person referred to in the conviction or determination“. In other words, the guidance now refers to an exception to a rule that already contains the exception.
Other parts illustrate the trend for spelling out to the tribunal how to approach certain issues, rather than allowing them to work it out for themselves. For example, detail is provided as to how a doctor’s testimonials should be taken into account (or not). It expressly states that tribunal should consider: (a) whether the testimonial is relevant to the specific findings the tribunal has made; (b) the extent to which the views expressed are supported by other available evidence; (c) how long the author has known the doctor; (d) how recently the author has had experience of the doctor’s behaviour or work; (e) the relationship between the author and the doctor; (f) whether there is any evidence that the author has a conflict of interest. The clear intention is to make the tribunal scrutinise testimonials with care, but these points hardly need to be spelt out.
An additional paragraph has been inserted under the heading “Expressions of regret and apology“, referring to the duty on healthcare organisations to support doctors in reporting adverse incidents: the tribunal should consider it a mitigating factor where a doctor has not apologised because their trust has prevented them from doing so. In relation to this, one would have thought any sensible and fair-minded tribunal would assume that if a doctor has tried, but has been prevented, from doing something, it would still count in his favour. It is, if anything, rather worrying that this sort of point needs to be spelt out.
The guidance repeatedly states the obvious. In doing so it betrays a worrying lack of faith in the good sense of the tribunal.