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Is Kingram’s house in order?

It’s fair to say that 2015 has been an annus horribilis so far for the Medical Council.

A bitter row over its recent registration fee hike, criticism in the media about its costs and fitness to practice (FTP) processes, as well as the implications of the recent Supreme Court Corbally judgement, have meant the Council’s relationship with doctors is at an all-time low.

Fees

The Council’s decision to increase its annual fees again this year, to €605, has incensed doctors, with a resulting slew of letters to the media, online commentary and a ‘Do Not Pay’ campaign by the IMO.

“I did stall myself, but the more they disrespected us, the more I felt I am going to be awkward, pay the €535, and see what happens.” These were the words of a registrar working in a hospital outside Dublin. The doctor spoke to the Medical Independent (MI) about the Council’s fee increase and plans among some doctors, notably NCHDs, to only pay the prior fee of €535.

As she observed, this latest fee increase represented the tipping point, equating to a 23 per cent fee increase by the Council over three years. The fee is also six times what nurses and midwives pay (€100) to register with An Bord Altranais, which backed down on an attempt to raise the fee to €150 last year.

Two days after the doctor spoke to MI, the IMO announced that despite its campaign and discussions with the Council, it had not secured a reversal of the fee increase to €605. In a statement, issued last week, the IMO said the Council had recognised that its communication with doctors around the fee issue was “not in line with best practice”. The Organisation said talks would commence before the end of September to review the fee structure and matters such as ability to pay and financial pressures on doctors at the early career stages. It said the Organisation had long advocated for staged payments and this would also comprise part of the talks.

The IMO added that the Council had agreed to engage with the training bodies on the cost of the professional competence schemes and would liaise with the IMO on these discussions.

Speaking to MI after the conclusion of talks, IMO Director of Industrial Relations Mr Steve Tweed said the Council had “damaged” its relationship with doctors, and would have to work “extremely hard” to rebuild it.

He said the fee increase was done without consultation, causing “a lot of anger” among members. However, he said the Council had “committed to ongoing engagement and intensive discussions” with the IMO on issues affecting doctors.

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Mr Steve Tweed, IMO Director of Industrial Relations

Mr Tweed pointed out that the Government is assigning more roles to the Council, outside its primary function as a regulator of the medical profession, and seems to expect the Council to perform these duties through doctors’ fees. “We believe that’s wrong. If the Government wants activities undertaken, and asks a regulatory body to do it, they should seek to fund that body to do the work, and not expect doctors to pick up the costs of Government policy.”

IMO NCHD Committee Chair Dr John Duddy, speaking to MI before last week’s talks concluded, said members had additionally expressed the need for different payment options in cases of maternity leave, sickness or emigration.

“The Medical Council stance now is absolutely rigid — that you have to pay the full fee, no matter what. And again, in other jurisdictions, when you are taking maternity leave and so on, there are options to pay a reduced fee to reflect your reduced length of practice during any given year. The Medical Council needs to look at flexible options for doctors,” Dr Duddy maintained.

The Council is not viewed in especially positive terms by many NCHDs, he contended.

“It would be perceived to be a monolithic body that doesn’t respond to concerns,” he said. “There are some vague references in its Annual Report this year about improving customer services to doctors, and from what I hear on the ground, they have seen very little of that.”

While he acknowledged its vital work in patient safety, Dr Duddy said the Council needed to be “more responsive” to the profession.

The Council informed MI that, under legislation, its revenue diversification options are restricted, therefore it must derive the vast majority of its income from doctors’ registration fees.

Barring any unforeseen circumstances, the Council said it would ensure fees remain static until 2018. It added that it had “engaged in rigorous financial planning and have undertaken cost-cutting programmes in order to address financial deficits”.

A major driver of costs from 2015 onwards will be clinical site inspections — this is already the case in relation to intern year — and it does not have leave for charges.

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Dr John Duddy, IMO NCHD Chair

“We receive no remuneration for the postgraduate training bodies’ operation of professional competence schemes, but are actively working with them in order to reduce their costs,” the Council told MI.

The Council added that it has waived leave to charge postgraduate bodies for recognition to the schemes in order to control professional competence schemes’ fees to doctors.

The Council also has a business case with the Department of Heath regarding fees to undergraduate and postgraduate bodies and is awaiting feedback on this.

Meanwhile, the Council would not comment when asked whether the CEO salary would remain at €136,276 (the salary of outgoing CEO Ms Caroline Spillane for 2014), as the recruitment process “is ongoing”.

Rental woes

While the Council maintains that it needs to increase its registration fees because its role has expanded in recent years, its detractors claim its financial difficulties are largely of its own making, with high legal, consultancy and staffing costs in recent years.

The Council’s annual rental bill — over €1 million when rates are included — for its headquarters at Kingram House, Dublin 2, has also been cited as a key part of its financial woes.

The terms of its 20-year rental lease (which commenced in January 2013 following the expiry of its five-year short-term lease and option to buy Kingram House) with Tanat Ltd, the owner of Kingram House, have been subject to litigation. In May 2013, the Council lost a court case aimed at reducing the rent down to market rates but it appealed this decision and lodged papers with the Supreme Court.

However, in its 2014 Annual Report the Council wrote, somewhat cryptically, that it had “executed the 20-year lease and settled all outstanding litigation with Tanat Ltd”.

When asked by MI what this meant and what its current rent and tenancy agreement was, the Council simply stated: “On 31 December 2014, the Council settled all outstanding litigation with Tanat Ltd. The terms of that settlement include confidentiality.”

MI also asked the Council if it had any plans to sell Lynn House, its former headquarters in Rathmines, or if it was rented out. The Council replied: “Lynn House is not in use by any other organisation/tenant and all other relevant information can be found within our most recent year’s Financial Statements within the Annual Report. There are no plans at present to sell the property.”

Meanwhile, the regulator spent over €9.2 million in “legal expenses” from 2011 to 2014 inclusive, according to data compiled from annual reports. Over €6.6 million related directly to “inquiries” — that is, legal costs for the Preliminary Proceedings Committee (PPC) and the FTP Committee.

Criticism

The case of retired neurosurgeon Mr Charlie Marks, who recently wrote a widely-read article in The Irish Times which was critical of the Council, has ignited debate on the Council’s current processes and associated legal costs, particularly where doctors do not dispute allegations.

In April, following a public FTP hearing, Mr Marks was found guilty of poor professional performance (PPP) arising out of a complaint that he performed an unsuitable procedure on a female patient with trigeminal neuralgia, and had failed to take any or adequate consent and failed to explain the procedure and/or the risks, among other allegations that were all proven.

The Council’s preliminary investigation of his case had lasted two-and-a-half years. Council literature says it can take “up to five months” from receiving a complaint to deciding what action to take. In January last, Mr Marks was advised that the case would proceed to FTP Inquiry. He had retired from clinical practice in 2014 and said both to MI and publicly that he never disputed the allegations.

At the FTP inquiry, the Council was represented by a solicitor and a barrister, while Mr Marks represented himself and admitted all of the allegations.

Mr Marks told MI that, after he was informed of the complaint in July 2012, he wrote to the Council “fairly early on” and admitted culpability “from the beginning, basically”.

“If they had read my letters carefully, I was basically saying ‘yes, I made a mistake in this case’. I didn’t inform this lady, I didn’t consent her properly, I didn’t tell her enough about the risks of the surgery, partly because I had done [the procedure] 350 times and had very, very few serious complications from it. I was sort of lulled into a sort of sense of false security, if you like. It was an error and I held my hands up and said so from the beginning.”

Mr Marks said while he had no issue with the FTP panel’s conclusions following the one-day public inquiry, he maintained the overall process is drawn-out and expensive. The timescale, such as in his case, is “unsatisfactory” for both doctor and patient, he stated. Many doctors commenting about his case on social media and in conversation with MI supported his criticism.

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Table 1: Medical Council FTP inquiries from 2010-2014

Alternatives

The length and nature of the FTP process may also impact on the mental health of some doctors, Mr Marks contended. Asked if the Council made him aware of mental health supports, he said it did not.

In 2012, the UK’s General Medical Council (GMC) commenced a pilot to test whether meeting with doctors at the end of an investigation would “help protect patients faster by enabling sanctions to be placed on a doctor’s registration without the need for a hearing before an FTP panel”.

If the doctor agreed to the outcome of the investigation and the proposed sanction, a hearing would not be needed. In cases where there was a dispute between the GMC and the doctor about the outcome of the investigation, or where the doctor did not accept the proposed sanction, the matter would be referred to a public hearing.

A spokesperson for the GMC told MI this pilot had concluded and the method is being used in certain instances as part of its regulatory processes.

Mr Marks said while it was not his remit to suggest alternative methods of regulation to the Council, “it would have been much better in my case if they had read my letters from the beginning and said ‘well, he is rather admitting that he screwed up’.”

The Council is not seen in a positive light by many medical professionals, Mr Marks believes.

MI asked the Council whether, following the Marks case, it was exploring a means of shortening the complaints process and reducing legal costs in cases where a practitioner admits guilt at an early stage and indicates that he/she no longer wishes to be registered.

A spokesperson for the Council told MI it cannot comment on individual cases and that complaints are considered by the PPC.

“The PPC, in conducting any investigation, are bound by fair procedures and the principles of natural justice and must fairly evaluate and gather relevant information in relation to any matter being considered,” the spokesperson outlined.

“Equally, the CEO, in presenting allegations of PPP or professional misconduct at an inquiry, must adduce evidence in support of any such allegations, usually to the criminal standard of proof.

“The role of the regulator is to act in the public interest and they must ensure that procedures followed are fair and reasonable to all parties concerned. Any regulator is afforded the power and remit to discipline or sanction a member, and so it must ensure it acts responsibly and fairly to all parties concerned in any investigation or inquiry.”

The Council spokesperson noted investigations vary in scope and timing, depending on the circumstances of each complaint: “The PPC collates information from many different sources, as appropriate, for example medical records, expert reports, witness statements etc, and this can take time.”

Public hearings

One of the key elements of the Medical Practitioners Act 2007 was the provision to hold FTP hearings in public. The Act directs that FTP inquiries are held in public unless an application is made by one of the involved parties to hold all, or part, of the inquiry in private, and the FTP Committee is satisfied that it would be appropriate in the circumstances to do so. The inquiries held in private are often of a very personal or intimate nature, the Council told MI.

However, the Council only held four of its 19 FTP inquiries in public last year, compared to 25 held in public in 2013.

There were 39 inquiries completed in 2013, just over double that of last year.

In total (up until June 30 2015), 37 doctors have been found guilty of PPP since the 2007 Act was introduced. Only two of the completed inquires in 2014 led to a finding of PPP, compared to 10 such findings the year before.

The Council, in its 2014 Annual Report, said that this is due in part to the impact of the Corbally case, as well as factors outside of the control of the Council, such as pending criminal prosecutions and investigations ongoing to prepare for the inquiry.

Transparency

Previously, under the old Act, the Council was seen as more accessible to both doctors and the media than it is now.

Under the old Act, regular media briefings after Council meetings took place. Journalists would receive an update on decisions that had been made about the work of the Council and issues that had been discussed, and had the opportunity to question senior Council members.

Council members and Presidents would also take phone calls from journalists and doctors about various Council matters, with due consideration of the stipulations of the Act and sensitive and confidential matters.

‘It would be perceived to be a monolithic body that doesn’t respond to concerns’

“I think that was a healthy way to do it and I know from talking to various journalists that things have changed, which is a pity, because there is a risk that things become too closed off with the new system and the new Medical Practitioners Act getting a bit of a bad name, which is a pity. I had hoped it would introduce more flexibility and more transparency,” Dr John Hillery, a former President of the Medical Council and former Chair of the International Association of Medical Regulatory Authorities (IAMRA), told MI.

Dr Hillery, who is currently Director of External Affairs and Policy at the College of Psychiatrists of Ireland, noted that the introduction of the 2007 Act was supposed to herald a new era of transparency on the workings of the Council, in particular with the holding of FTP hearings in public.

However, he said that FTP hearings have “become in ways a bit of public entertainment in the broadest sense, which isn’t good for anyone, which I had said at the time before the Act came in.

“Some people seemed to suggest that I was the one who wanted public inquiries but I always said I didn’t think they were necessarily good for doctors or patients and I think that may have been borne out,” Dr Hillery told MI.

He also voiced concern about the costs to doctors, financially as well as professionally and psychologically, of protracted FTP hearings and added that this was also not in the public interest. While “proper regulation is vital, there has to be a balance,” he said.

In response to queries from MI, the Council said it “strives to be open and transparent in all of its work to ensure the confidence of doctors and members of the public”. It also pointed out that it publishes all findings of FTP inquiries and the minutes of its meetings on its website. However, the minutes were described to MI by one doctor as “so brief I don’t know why they bother. They certainly don’t give anything away, bar who attended the meeting and vaguely what the agenda was”.

Changes?

Dr Hillery said he had been “very struck” by the recent article by Mr Marks in The Irish Times, and that it certainly raised questions about the current FTP process.

“If you look at what happened to him, it seems ridiculous. He had admitted a mistake… It does raise a lot of questions about the process and about is the process taking over.”

Dr Hillery stressed that he was not criticising the current Council and was cognisant of its restrictions and responsibilities in how it operates and what it can discuss under the 2007 Act.

“However the professional conduct procedures remain legally-driven and constrained. This has at least two effects. The first seems to be that the Council cannot comment on cases so we do not get a productive discussion on the issues, such as those raised by Mr Marks.

“We also get only one side of the story. This also applies when a patient is not happy with the outcome of a case. This is not helpful to anyone but is probably not the fault of the Council, nor is it something that the current Council can do something about, as it would probably require a change in the Act,” Dr Hillery told MI.

He said the second effect is the one that the Marks case seems to illustrate. “That is that even if a doctor admits a mistake, the only way to sanction him/her is by going through the whole procedure leading to the apparently ridiculous experience recounted by Mr Marks. Once again, the Council does not seem to be allowed to explain this and it is not in their power to change this, as it would once again seem to require a new or at least much-changed Medical Practitioners Act to do so.

“It is perhaps time for an informed public debate on these issues but I doubt if much appetite exists at a legislative level for a new Medical Practitioners Act,” he concluded. 

Impact of the Corbally case on the work of Council

It is clear that the ‘Corbally case’ has had a significant impact on the work of the Council in relation to FTP cases.

The original case centred on a complaint made to the Council about Prof Martin Corbally regarding a ‘tongue-tie’ procedure performed on a child in error in 2010, when he was Consultant Paediatric and Neonatal Surgeon in Our Lady’s Hospital for Sick Children, Crumlin.

In October 2012 the Council’s FTP Committee found Prof Corbally guilty of poor professional performance (PPP) and admonished him.

The High Court, by way of judicial review proceedings brought by Prof Corbally, eventually quashed the Council’s findings in November 2013.

The Council appealed the High Court decision to the Supreme Court, to receive clarity on the definition of PPP, which is one of the most common grounds of complaint investigated by the Council.

This Supreme Court Appeal was heard in October 2014, and in a judgment delivered in February 2015, the Supreme Court upheld that finding. The Court noted that it had been accepted by the Council that if it were necessary to prove behaviour by Prof Corbally that fell seriously short of the standard expected in order to establish PPP, it could not do so.

In effect, the judgement means that for any complaint made to the Council to be referred to FTP inquiry on the grounds of PPP, the matter must be of a “serious” nature.

Barrister Elaine Finneran, who has written about the judgement, noted that prior to the Corbally decision, PPP was regarded as governing a shortcoming in a doctor’s conduct, which was less serious than one that amounted to professional misconduct.

“However the Supreme Court in Corbally held that a ‘seriousness’ threshold also attaches to the standard of PPP. Mr Justice Hardiman noted (at paragraph 19 in the judgement) that if it were the wish of the Oireachtas to legislate so as to render sanctionable, either as professional misconduct or as PPP, non-serious failings by a medical practitioner, it would be necessary to use explicit language to bring this about,” she explained to the Medical Independent (MI).

There is now no material difference between the standards of PPP and professional misconduct, as both incorporate a seriousness threshold, Ms Finneran pointed out.

The fact that there is no distinction between the sanctions available for PPP and for professional misconduct was a significant factor in the Court’s decision that the same threshold should apply, she noted.

“I think the comments of Mr Justice O’Donnell are of note in this regard: He said that ‘it does appear that the 2007 Act in this regard was not perhaps fully thought through, and neither entirely adopts the position in the UK (which might have many practical benefits given the professional exchange between the two jurisdictions) nor establishes a fully coherent and independent scheme of professional supervision and discipline.’”

The Department of Health and its legal advisors are currently examining the Corbally judgement.

According to the Council, suggested legislative amendments are now being progressed with the Department with a view to ensuring that the legal framework underpinning the complaints systems is as robust as possible.

“Any amendments will require careful consideration in conjunction with all professional health regulators. Given the time constraints to transpose the modernised professional qualifications Directive, it is unlikely that amendments will be identified in sufficient time to be included in the Health (Miscellaneous Provisions) Bill,” a Department spokesperson told MI.

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