The legal framework for the Fitness to Practise pro- cedures is set out in Medical Act 1983 and the Fit- ness to Practise Rules 2004. These are frequently amended and revised (at the time of writing, most recently in 2009) and reference should be made to the GMC to be aware of the current process. The Medical Act gives the GMC powers and responsi- bilities for taking action when questions arise about doctors’ fitness to practise. The detailed arrange- ments for how these matters are investigated and adjudicated upon are set out in rules which have the force of law.
Procedures are divided into two separate stages:
‘Investigation’ and ‘Adjudication’. The investigation stages investigate cases to assess whether there is a need to refer them for adjudication. The adjudica- tion stage consists of a hearing of those cases that have been referred to a Fitness to Practise Panel.
2 The ethics of me dical pr actice
Where the complaint raises questions about the doctor’s fitness to practise, an investigation will commence and the complaint will be disclosed to the doctor and his/her employer/sponsoring body.
This is intended to ensure that there is a complete overview of the doctor’s practice and makes the information available to those responsible for local clinical governance. Further information may be sought from the complainant, whose consent will be needed to disclose the complaint to the doctor.
The doctor is given an opportunity to comment on the complaint. An investigation may need fur- ther documentary evidence from employers, the complainant or other parties, witness statements, expert reports on clinical matters, an assessment of the doctor’s performance and an assessment of the doctor’s health.
At the end of the investigation of allegations against a doctor, the case will be considered by two senior GMC staff known as case examiners (one medical and one non-medical) who can conclude the case with no further action, issue a warning, refer the case to a the Panel or agree undertakings.
Cases can only be concluded or referred to a Fit- ness to Practise Panel with the agreement of both a medical and non-medical case examiner. If they fail to agree, the matter will be considered by the Investigation Committee, a statutory committee of the GMC. A warning will be appropriate where the concerns indicate a significant departure from the standards set out in the GMC’s guidance for doctors, Good Medical Practice, or if there is a significant cause for concern following assessment.
A t any stage of the investigation a doctor may be referred to an Interim Orders Panel (IOP), which can suspend or restrict a doctor’s practice while the investigation continues. Cases referred to the IOP are those where the doctor faces allegations of such a nature that it may be necessary for the protec- tion of members of the public, or it may be in the public interest or in the interests of the doctor for the doctor’s registration to be restricted whilst the allegations are resolved. An IOP may make an order suspending a doctor’s registration or imposing con- ditions upon a doctor’s registration for a maximum period of 18 months. An IOP must review the order within 6 months of the order being imposed, and thereafter, at intervals of no more than 6 months. If an IOP wishes to extend an order beyond the period initially set, the GMC will apply to the High Court for permission to do so.
The Fitness to Practise Panel hears evidence and decides whether a doctor’s fitness to practise is impaired. Fitness to Practise hearings are the final stage of procedures following a complaint about a doctor.
A Fitness to Practise Panel is composed of medical and non-medical persons and normally comprises three to five panelists. In addition to the chairman, who may be medical or non-medical, there must be at least one medical and one non-medical pan- elist on each panel. A legal assessor sits with each panel and advises on points of law and of mixed law and fact, including the procedure and powers of the panel. One or more specialist advisers may also be present to provide advice to the panel in relation to medical issues regarding a doctor’s health or per- formance. The GMC is normally represented at the hearing by a barrister. The doctor is invited to attend and is usually present and legally represented. Both parties may call witnesses to give evidence and if they do so the witness may be cross-examined by the other party. The panel may also put questions to the witnesses. The panels meet in public, except where they are considering confidential information concerning the doctor’s health or they are consider- ing making an interim order.
Once the panel has heard the evidence, it must decide whether the facts alleged have been found proved and whether, on the basis of the facts found proved, the doctor’s fitness to practise is impaired and, if so, whether any action should be taken against the doctor’s registration. If the panel concludes that the doctor’s fitness to practise is impaired, the following sanctions are available: to take no action; to accept undertakings offered by the doctor provided that the panel is satisfied that such undertakings protect patients and the wider public interest; to place conditions on the doctor’s registration; to suspend the doctor’s registration; or to erase the doctor’s name from the Medical Regis- ter, so that they can no longer practise.
Doctors have a right of appeal to the High Court (Court of Session in Scotland) against any decision by a panel to restrict or remove their registration.
The Council for Healthcare Regulatory Excellence (which oversees and scrutinizes nine healthcare regulatory bodies in the UK) may also appeal against certain decisions if they consider the decision was too lenient. Any doctor whose name was erased from the Medical Register (‘the Register’) by a Fit- ness to Practise Panel can apply for their name to
F urther information sourc es
be restored to the Register. Doctors cannot apply to have their name restored to the Register until after a period of 5 years has elapsed since the date their name was erased.
Regulatory bodies for other healthcare profes- sionals in the UK follow a general style similar to that of the GMC when assessing the performance of practitioners.
■ Further information sources
Biggs H. Healthcare Research Ethics and Law: Regulation, Review and Responsibility. London: Routledge Cavendish, 2010.
Caldicott Guardian Manual 2010. http://www.dh.gov.uk/prod_
consum_dh/groups/dh_digitalassets/@dh/@en/
@ps/documents/digitalasset/dh_114506.pdf (accessed 23 November 2010).
Chester (Respondent) v Afshar (Appellant) (2004) UKHL 41 Pt 2. http://www.publications.parliament.uk/pa/ld200304/
ldjudgmt/jd041014/cheste-1.htm (accessed 23 November 2010).
Council for Healthcare Regulatory Excellence. http://www.
chre.org.uk/.
Fitness to Practice Rules 2004. http://www.gmc-uk.org/
consolidated_version_of_FTP_Rules.pdf_26875225.pdf (accessed 23 November 2010).
General Medical Council. http://www.gmc-uk.org/.
General Medical Council. Good Medical Practice. Manchester:
General Medical Council, 2006; http://www.gmc-uk.org/
guidance/good_medical_practice/index.asp
General Medical Council Confi dentiality. Guidance for Doctors.
Manchester: GMC, 2009; http://www.gmc-uk.org/static/
documents/content/Confi dentiality_core_2009.pdf General Medical Council Consent: Patients and Doctors
Making Decisions Together. Guidance for Doctors.
Manchester: GMC, 2008; http://www.gmc-uk.org/
Consent_0510.pdf_32611803.pdf
Gillick v West Norfolk and Wisbech AHA [1986] AC 112. http://
www.hrcr.org/safrica/childrens_rights/Gillick_WestNorfolk.
htm (accessed 23 November 2010).
Health Professions Council. http://www.hpc-uk.org.
Lynch J. Health Records in Court. Oxford: Radcliffe Publishing, 2009.
Lynch J. Clinical Responsibility. Oxford: Radcliffe Publishing, 2009.
McLean S. Autonomy, Consent and the Law. London:
Routledge Cavendish, 2010.
McLean S, Mason JK. Legal and Ethical Aspects of Healthcare. London: Greenwich Medical Media, 2003.
Medical Act 1858. http://www.legislation.gov.uk/
ukpga/1858/90/pdfs/ukpga_18580090_en.pdf (accessed 23 November 2010).
Medical Act 1983. http://www.opsi.gov.uk/si/si2006/
draft/20064681.htm (accessed 23 November 2010).
Mental Capacity Act 2005. http://www.legislation.gov.uk/
ukpga/2005/9/contents (accessed 23 November 2010).
Nursing and Midwifery Council. http://www.nmc-uk.org.
Pattinson SD. Medical Law and Ethics, 2nd edn. London:
Sweet & Maxwell, 2009.
Payne-James JJ, Dean P, Wall I. Medicolegal Essentials in Healthcare, 2nd edn. London: Greenwich Medical Media, 2004.
World Medical Association. http://www.wma.net/.
World Medical Association. WMA International Code of Medical Ethics. http://www.wma.net/en/30publications/10policies/
c8/index.html (accessed 23 November 2010).
■ Introduction
■ Definition of death
■ Vegetative state
■ Tissue and organ transplantation
■ Cause of death determination and certification
■ Medico-legal investigation of death
■ The autopsy
■ The Minnesota protocol
■ Exhumation
■ Further reading
Chapter
3
The medical aspects of
death
■ Introduction
All doctors encounter death, and the dying, at some time in their medical career, and must have an understanding of the medical and legal aspects of these phenomena.
■ Definition of death
Only organisms that have experienced life can die, as death represents the cessation of life in a previ- ously living organism. Medically and scientifically, death is not an event; it is a process in which cel- lular metabolic processes in different tissues and organs cease to function at different rates.
This differential rate of cellular death has resulted in much debate – ethical, religious and moral – as to when ‘death’ actually occurs. The practical solution to this argument is to consider the death of a single cell (cellular death) and the cessation of the inte- grated functioning of an individual (somatic death) as two separate aspects.