Response to the draft report of the Tackling Concerns Nationally Working Group
July 2008
Status of OHPA
Recommendation 1
The BMA supports the principles of the Office of the Health Professions Adjudicator’s (OHPA’s) independence from Government.
We also believe that OHPA’s financial freedom should be closely monitored to ensure efficiency, economy and value for money and that it should produce processes that are fair to respondent health professionals and which maintain the confidence of patients and the public.
Recommendation 2
The BMA supports the inclusion of OHPA into the remit of the Administrative Justice and Tribunals Council (AJTC), to produce consistency in the administration of justice.
Recommendation 3
The BMA agrees that OHPA should be required to consult persons that it considers appropriate before making its rules.
Establishment and Governance of OHPA
OHPA’s Board
Paragraph 4.2.
The BMA agrees with the concerns of the Working Group that the suggested size of a board of three members may be too small properly to undertake all necessary governance functions and that this may lead to insufficient scrutiny of the executive. We would suggest at least five members. It is difficult to see how the needs and interests of the various branches of medical practice and of the devolved nations can be accommodated within such a small board
Recommendation 4
The BMA agrees that the OHPA’s Chair should be appointed first and that the Chair should be asked to sit on the selection panel for other board members.
Accountability of the Board
Recommendation 5
We agree that one of the first tasks of the shadow/first board for OHPA should be to produce a governance statement which should include consideration of the likely effectiveness of a board of three to deliver proper governance.
Criteria for Appointment of Board Members
Paragraph 4.16.
The BMA agrees with the Working Group that it is difficult to envisage how a board of only three can effectively undertake all the necessary functions of a board and cover all relevant interests.
Functions – OHPA’s Panels
We believe that there should always be a professionally qualified member on the panel.
Recommendation 8
We support the principle that all specialist evidence given to OHPA’s panels is heard in public.
We have some concerns that highly technical considerations may not be suited to the rules of evidence, especially where there are very complicated matters, and expressions of opinion are made in an environment of considerable doubt. Instead there could be discussion in camera, with a written digest of the opinion given to the public session.
Recommendation 9
The BMA rejects the statement that OHPA should avoid appointing panel members from the same medical sub-specialism as the respondent practitioner, wherever possible. We strongly believe that there should be at least one doctor on the panel, preferably in the same specialty as the doctor being investigated.
Recommendations 10 and 11
We are concerned that the recommendation would allow an inquorate panel to make a determination. No panel should be able to make a determination (even with the agreement of the respondent doctor) unless fully quorate. If the panel becomes inquorate, the hearing should be suspended or adjourned and a new (i.e. completely new quorate panel) should make any decisions. We also believe that there should always be a professional member present.
Paragraph 5.8.
The BMA does not want ‘professional’ adjudicators to be appointed, but agrees with the Working Group that panellists should sit regularly to maintain familiarity and skills for this particular work.
Recommendation 12
We agree with the proposal that OHPA should require prospective panellists to make a formal commitment to be available to sit for at least the current minimum of 20 days per year or more.
Recommendation 13
We strongly endorse the principle that the transition plans for the transfer of GMC adjudication functions to OHPA should take account of the relatively large number of panellists that will be required to adjudicate upon medical fitness to practise cases and the desirability of retaining experienced GMC panellists. This would retain the expertise of current, fully trained, GMC panel members.
Chairs of Panels
The BMA is not against the idea of a legally qualified Chair for some OHPA panels, but would not wish to see all panels chaired by a legally qualified person as a matter of course. We believe that it may sometimes be more appropriate to have a medically qualified Chair than a legal Chair, especially for technically complex clinical cases.
We believe that it is important that flexibility is maintained with regard to the chairmanship and membership of the panels and that the ability and competence of the panel chairs and members is of prime importance. Expert legal and medical advice should continue to be made available to fitness to practice panels.
Recommendation 14
We support the recommendation that there should be a pilot scheme to test the benefits of using legally qualified chairs, but non-legal chairs should operate at the same time as the pilot to secure adequate comparison. The analysis should be carried out by an external, independent body. As stated above, we would not wish to see legally qualified chairs used automatically, but believe the pilot would be helpful in identifying the types of case when a legally qualified chair would be beneficial.
Procedural issues
Recommendation 15
We support the recommendation that OHPA should have regard to the recommendations of the working group established by the GMC to consider the management of procedural issues within hearings.
Location of Hearings
The BMA agrees with the view of the Working Group that that OHPA’s board should explore the arguments for and against holding hearings in a wider range of locations.
Local hearings are likely to be preferable and more convenient for the doctor whose case is to be considered but may increase costs as panellists are likely to come from another region.
The Role of the Chair of OHPA’s Panels
Paragraph 5.32
The BMA has concerns about outsourcing the selection of fitness to practise panels as outside agencies which may vary in quality and consistency. We believe that OHPA itself will be in the best position to judge panellists’ ongoing competence and performance. The best compromise may be internal appointment or re-appointment panels with an external observer c.f. consultant appointment panels in the NHS.
Tenure and Terms of Service of Panellists
Recommendation 18
We do not believe that OHPA’s panel members should be appointed with ‘an expectation’ of reappointment. There is often a need to bring in fresh blood and an expectation of a ten-year tenure militates against that – and tends towards ‘professional’ panellists.
Sanctions
Recommendation 19
The BMA has some reservations about the recommendation that ‘in drawing up rules for its panels OHPA should take account of the recommendations made by Lady Justice Smith in the Fifth Report of the Shipman Inquiry’, as it this report is now some years out of date.
Financial Arrangements
The BMA still has concerns that that the GMC, and therefore doctors, will be expected to bear the costs of maintaining the new body and seeks reassurance that the new body will provide value for money.
Setting of the Fee
Recommendation 20
Given that registrants will bear the cost of adjudication, except set-up costs, there needs to be a far more rigorous scrutiny of OHPA’s costs than the current ‘formula’ which has few realistic constraints.
There must be explicit regulation of pension costs and terms and conditions of staff.
Paragraph 6.8.
It is stated that if OHPA should fail to take proper account of the GMC’s or GOC’s representations when they think the level of the fee is incorrect or unfair before the actual fee level is finalised, that the Treasury would have the power to refuse to approve the fee. We do not believe that the Treasury is independent sufficiently enough in such circumstances and propose that an independent body should make decisions in such circumstances.
Recommendation 21
We agree that as far as possible OHPA should have the flexibility to carry over funding from one financial year to the next.
Information
Publication and Disclosure of Information
Paragraph 7.3
We agree that it is necessary to produce formal policy on the publication of information and disclosure of information. This should be developed by OHPA’s first board. We remain concerned regarding confidential information about the health of a doctor being made publicly available and therefore suggest that the OHPA be prohibited from publishing such information and not be given discretion in the matter.
Recommendation 22
There needs to be absolute consistency between the information provided by the GMC and OHPA.
Transition
The transition of functions from the GMC’s fitness to practise panels to those of the OHPA will require careful planning and management. The BMA seeks further clarification from the Department of Health on how this transitional period will be organised and the timescale for the transfer.