Sun, 09 Oct 2011
By Melanie McDonald
Melanie McDonald talks to Stephen Shaw about the implications for healthcare regulation of the abolition of OHPA.
On one of those interminable rainy afternoons that held itself out as summer until late September came along, Stephen Shaw comes bouncing through the door of chambers’ London office. He apologises for being late (he’s not) and explains that he has been attending a retirement lunch, “not an unusual occurrence these days” he says ruefully, although no one could look less ready for a gold watch and a bag of golf clubs.
The former Prisons Ombudsman and current Chief Executive of OHPA is an enthusiastic and engaging proponent of the reforms to healthcare professional regulation that the creation of OHPA heralded. This is unfortunate given that clause 228(1) of the current Health and Social Care Bill provides simply:
‘The Office of the Health Professionals Adjudicator (the “OHPA”) is abolished’
In the midst of the hue and cry over the shake up of the NHS with which that particular piece of legislation is more usually associated, the demise of OHPA has gone largely unnoticed.
The creation of an independent tribunal to hear allegations against healthcare professionals was one of the central planks of Dame Janet Smith’s recommendations in the Fifth Shipman Report. It was implemented by the last government in its Health and Social Care Act 2008. The idea was that, while regulatory bodies such as the GMC would continue to investigate and prosecute complaints against healthcare professionals, the hearings would take place before an independent OHPA tribunal. In the case of the GMC this would have resulted in approximately a third of its budget and 25% of its staff being diverted to OHPA.
The timescale was tight. OHPA was scheduled to take over GMC hearings from April 2011 and those of the General Optical Council from 2012 with the other regulators following at some unspecified date later, so that ultimately all disciplinary hearings against healthcare professionals would be dealt with by a single body achieving consistency of outcome and significant financial savings.
Stephen Shaw took up his post as Chief Executive in May 2010. The timing could not have been worse, coinciding as it did with the arrival of the coalition government with its commitment to the “Bonfire of the Quangos”. Within months the new government had published a consultation paper with the not very hidden agenda of abolishing OHPA. In essence, the consultation put forward three options. The first, characterised as the “do nothing” option would be to leave OHPA to get on with the job it had been set up to do (thus making the most radical option sound the most tame) . Option 2 involved the abolition of OHPA with reforms to the existing system to be legislated for at some unspecified future date. This was the preferred option. Finally there was Option 3 – abolish OHPA and leave things as they were.
Under the current system the regulatory process is often time consuming and cumbersome. At the outset the case may be put on hold pending the conclusion of criminal or employment tribunal proceedings or an inquest. In a system driven by the need for the case to be referred back to a committee for a decision about its future progress at every stage, the opportunity for delay is compounded and filters through to the hearing itself.
It is not uncommon for cases to be adjourned part heard for months at a time because the time allocated for the hearing has been used up by legal argument about procedure or the admissibility of evidence. Active case management both before and during the hearing is virtually non-existent with the result that the case often spirals out of control. At each of the three stages of its decision making process, the panel must set out the reasons for its decision with sufficient clarity to render the decision immune to the challenge in the High Court, which will almost inevitably follow if they get it wrong. This can be a tall order for a lay panel assisted by a legal assessor usually drawn from the independent bar and whose advice may vary depending on whether he or she has a civil or criminal practice.
“Every time I had any doubts about what we were doing,” Shaw says, “I would go down to the GMC and observe a hearing for a couple of hours; watching two silks engaged in lengthy argument over some arid procedural point does focus the mind wonderfully on the benefits of reform.”
The snails’ pace at which many cases can make their way through the regulatory process is in no one’s interest. If the practitioner is subject to an interim suspension order this can have a devastating effect on their career in a case where ultimately they may be acquitted. Likewise patients who may have suffered greatly as the result of misconduct on the part of a doctor or nurse may have to wait years before the case is finally decided and action taken to remove the practitioner from the register or put in place other measures to protect the public.
Shaw points not only to the advantages of having a genuinely independent forum to consider allegations against healthcare professionals but also to the significant costs saving that would have been achieved in the long run as OHPA took over responsibility for fitness to practise hearings for all the healthcare regulators, not only through the economies of scale but also through the introduction of procedural reforms which would have brought fitness to practise hearings more in to line with other civil proceedings.
He accepts that there would have been, in effect, two stages in the reform of the system. With an anticipated start date of April 2011, the timelines were tight. This meant working closely with the GMC to achieve a fit for purpose system in the short term. In the longer term, however, it was envisaged that there would have been a fundamental overhaul of procedure which, in introducing the kind of reforms embraced by the civil courts more than a decade ago, would have achieved significant savings both in costs and the amount of time taken to dispose of a case. These reforms would have included dispensing with legal assessors in favour of legally qualified chairs, a two stage rather than three stage process, and active case management designed to resolve the kind of procedural and evidential issues that currently take up so much hearing time, at a much earlier stage in the proceedings.
Shaw was particularly keen on the introduction of costs sanctions as a way of ensuring compliance with case management directions. Something which the GMC, now left to its own devices, appears more nervous about, suggesting in its recent consultation paper that an alternative sanction would be to exclude evidence served late; although the discretion to do so already exists and in any event it is difficult to see how in many cases this could be Article 6 compliant.
Ultimately, says Shaw, he would have been looking for healthcare professional regulation to have been fully absorbed in to the civil justice system with its tribunals joining other First Tier Tribunals under auspices of the Ministry of Justice.
For Stephen Shaw the frustrating thing is how close OHPA came to slipping through the fence. He estimates that another three or four weeks would have seen OHPA home and dry having entered into major contractual commitments for premises and IT, which could not have been easily dismantled and which would have undermined any argument advanced on the basis of short-term cost savings. As it is the immediate savings achieved by the abolition of OHPA are estimated to be in the region of £5 – 6 million, a relatively modest amount. But still at a time of public spending restraint, isn’t it easy to make out the case for any cut back?
Shaw points out that the government will now incur new costs in legislating for any reforms to the Fitness to Practise procedure of the GMC and other regulators. Moreover while set up costs were to be covered by funding from central government, once the tribunal was established its running costs would have been met from the regulators using its services. Additionally he ponders the question that if there is force in the argument that the bill for establishing an independent body to deal with doctors’ misconduct should not lie at the door of the tax payer, then why shouldn’t the doctors themselves, through their regulatory body, meet the set up costs of the service?
The GMC’s response to the abolition of OHPA has been to propose the creation of a new statutory committee, the Medical Practitioner’s Tribunal Service to hear allegations against doctors. This would achieve an internal separation between the investigation and adjudication of complaints, but questions remain as to how independent the MPTS can be given that it will have an ongoing obligation to report to the GMC twice a year.
Secondly, however good the MPTS turns out to be, it is unlikely to achieve the consistency of outcome across all the healthcare professions which would have been possible with just one adjudicatory body. This would have meant, for example, that where clinical incident involves a number of different healthcare professionals they could all be dealt with together enabling there to be a more joined up understanding of what occurred.
A further practical disadvantage says Shaw is having all GMC cases heard in Manchester. “If you’re a GP in Cornwall,” he points out, “not only do you have all the stress associated with a disciplinary hearing, but you also have the not inconsiderable expense of travelling to and staying in Manchester for the duration of the hearing. What OHPA could have provided, once it was dealing with all healthcare professionals, is a network of hearing centres throughout the UK”.
It is obvious from the GMC’s own consultation papers, published in the wake of the government’s decision to go with Option 2, that many of OHPA’s ideas have been incorporated in to its proposals for reform, but it’s hard to resist the conclusion that under the energetic guidance of Stephen Shaw, aided and abetted by the equally committed Chairman, Walter Merricks, OHPA offered the possibility of establishing a modern and coherent system of healthcare professional regulation, which has been sacrificed for a short-term relatively modest financial saving. Shaw predicts that the abolition of OHPA and the government’s alternative policy to work with the existing regulators, will in the long term prove “more expensive, more protracted and far less certain in its outcome.”
Next month Melanie discusses how the introduction of the MPTS is likely to impact on the regulation of the medical profession with Niall Dickson, Chief Executive of the GMC.