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A Memorandum of Understanding between the Care Commission and the General Medical Council

April 2005

Preamble

The objective of this Memorandum is to set out the framework that the Scottish Commission for the Regulation of Care, known as the Care Commission (CC) and the General Medical Council (GMC) have agreed for co-operation and collaboration.

The purpose of the relationship is to ensure that the two organisations complement and strengthen each other ' s respective roles and function. Collaboration between the Care Commission and the GMC is necessary to protect the safety and well being of people who use care services and to support improvements to the quality of care services.

This Memorandum does not affect existing statutory functions or amend any other policies or agreements relating to the activities of the Care Commission, or the GMC.

This Memorandum is not a contract and is not legally enforceable. However, the GMC and the Care Commission agree to adhere to its principles and to show proper regard for each other's activities.

The Care Commission and the GMC will keep this protocol under review and update it as necessary.

Functions of the Care Commission and GMC

Care Commission

The Care Commission was set up under the Regulation of Care (Scotland) Act 2001 (“the Act”) to establish a new unified system of regulation for care services in Scotland which puts the safety and well-being of users at its heart. The aim of the Care Commission is to further improvement in the quality of care services in Scotland, respecting the rights of people who use those services to dignity, choice and safety.

The Care Commission has a number of duties which are specified within the Act. These include functions conferred on it by the Act or any other enactment, such as:

  1. Furthering improvement in the quality of care services provided in Scotland;
  2. undertaking the regulation of care services in Scotland as specified in the Act;
  3. providing information to the public and to the Minister about the availability and quality of care services;
  4. taking into account the National Care Standards for all care services;
  5. taking into account the Codes of Practice for employees and employers issued by the Scottish Social Services Council and
  6. a requirement that it must consult with the Scottish Social Services Council when carrying out its tasks.

The Act and associated secondary legislation makes provision for the manner in which the Care Commission will carry out regulation of care services. The Care Commission has a range of powers to carry out these regulatory responsibilities. The Care Commission may: grant registration, subject to conditions or unconditionally, and refuse registration; inspect services; investigate complaints about services; impose, remove or vary conditions of registration, grant or refuse requests for variation of conditions, or cancel registration. The Care Commission can also report care service providers who have committed specific offences under the Act to the procurator fiscal for consideration of prosecution. Legislation other than the Regulation of Care (Scotland) Act 2001 and associated regulations and orders will apply to care services, and this should also be complied with, even though the Care Commission does not regulate in relation to this legislation.

The Act also specifies a set of principles which must inform the manner in which the Care Commission carries out its duties and functions:

  1. the safety and welfare of all persons who use, or are eligible to use, care services are to be protected and enhanced;
  2. the independence of those persons is to be promoted and
  3. diversity in the provision of care services is to be encouraged to promote choice.

The Act introduced National Care Standards for a range of care services. These National Care Standards are published by the National Care Standards Committee. T he Care Commission has a legal duty to take the National Care Standards into account when regulating .

P roviders of care services must be fit to provide that service . A provider is unfit if they are not of integrity and good character have been convicted of certain criminal offences, or have been subject to certain financial penalties. The Care Commission assesses fitness when a provider applies to register a care service and may consider the provider ' s fitness at a later stage, for example when undertaking its statutory responsibility to investigate services and investigate complaints about a service.

G eneral Medical Council

The GMC is a statutory body responsible for regulating the medical profession in the United Kingdom. Its purpose is to:

‘ protect, promote and maintain the health and safety of the community by ensuring proper standards in the practice of medicine.'

The GMC has statutory powers under the Medical Act 1983 as amended to take action when concerns are raised about the fitness to practise of an individual doctor of a level of seriousness which calls into question the doctor's fitness to remain on the medical register without restriction.

The GMC is not a general complaints body and can act only where there is evidence that a doctor may not be fit to practise. Complaints can usually be resolved at a local level, for example through the NHS complaints procedures ,or independent and voluntary providers complaints procedures.

The GMC licenses doctors to practise medicine in the United Kingdom.

The law gives the GMC four main functions:

  • Keeping up to date registers of qualified doctors.
  • Fostering good medical practice.
  • Promoting high standards of medical education.
  • Dealing firmly and fairly with doctors whose fitness to practise is in doubt.

A key aspect of public protection is the GMC's responsibility to investigate complaints about doctors. It does so using its Fitness to Practise procedures. Complaints are thoroughly investigated before a Case Examiner makes a decision on whether to refer the doctor to a Fitness to Practise panel. Case Examiners can also issue a warning, or agree practice undertakings with the doctor where their health or performance impairs their fitness to practise. The same sanctions are available where a case is referred to a Fitness to Practise panel, which has the added powers of suspension or removal from the register, in serious cases.

The GMC continues to develop plans to regulate doctors through a new system of registration. Doctors wishing to practise medicine in the UK will need a licence to practise in addition to their registration.

Licensed doctors will be required to satisfy the GMC regularly (normally every five years) that they remain up to date and fit to practise, in line with the template of GMC's Good Medical Practice. They will do this by drawing evidence from all of their actual medical practice including practice in care services regulated by the Care Commission. This process, known as revalidation, will be a condition of a doctor's continued licensure with the GMC. It will be an important part of the GMC's accountability to patients and the wider public.

Scope of this Memorandum

This Memorandum relates to the areas of interface between the Care Commission and the GMC. It does not place additional responsibilities on either organisation; or imply any transfer of responsibility from one to the other, or sharing of statutory responsibilities.

Interfaces may arise between the GMC and the Care Commission:

  • Through on-going exchange of information and co-ordination of activity.
  • If the Care Commission wishes to bring specific concerns to the GMC's attention.
  • If the GMC wishes to bring specific concerns to the Care Commission's attention.

Exchange of information and coordination

Subject to the statutory and other constraints, the working relationship between the Care Commission and the GMC will be characterised by regular on-going contact and open exchange of information, through both formal and informal meetings and at all levels, including senior levels. The arrangements will be kept under review by the named contact points and others with relevant responsibilities at the Care Commission and the GMC, whose details are at Annex A.

It is understood by the Care Commission and the GMC that statutory and other constraints on the exchange of information will be fully respected, including the requirements of the Data Protection Act 1998, Human Rights Act 1998 , Freedom of Information (Scotland) Act 2002 (CC) and Freedom Of Information Act 2000 (GMC). The common law duty of confidentiality will also be maintained.

Each organisation will respect and, as appropriate, take steps to protect the confidential nature of documents and information that the other may provide. It is acknowledged that information may be subject to disclosure in the context of enforcement action, legal proceedings or to satisfy statutory requirements.

Where information exchanged between the Care Commission and the GMC involves patient related or other confidential information, the case will be referred with the data anonymised. If the body receiving the information considers that action on. If it is not possible to obtain consent, or if consent is not forthcoming, consideration will be given to whether it is fair and lawful to share the personal information in terms of the Data Protection Act 1998 and other legislation and guidance .

The GMC may disclose to the Care Commission or any other person any information relating to a practitioner's fitness to practise which they consider it to be in the public interest to disclose.

The Care Commission has legal powers to inspect care services , and to require information relating to the service from a ny person or service who is, or appears to be, operating a service registerable under the Regulation of Care (Scotland) Act 2002. who is providing a registered care service. The Care Commission also has a number of other powers , for example, to enter premises which are being used for the provision of a care service, to examine how a person cared for in the ser vice is being treated, to conduct interviews, and to require the provider or manager to produce any document or record for inspection. However, only medical practitioners or registered nurses authorised by the Care Commission have power to examine a servi c e user, with consent, or to inspect medical records relating to a person ' s treatment by the service or in the premises.

Under section 35A of the Medical Act 1983, when the GMC is considering a practitioner's fitness to practice it may require any person to supply information or produce a document which appears relevant. However, such documents ca n only be produced if in accordance with the Data Protection Act 1998 and any other relevant legislation, and this power only applies to information which a person could be compelled to supply to the Court of Session. The GMC has the power to demand documents from a third party . This may include s documents provided to or prepared by the Care Commission in confidence for an unrelated purpose which impact on a practitioner's fitness . The GMC may ask Care Commission representatives to give evidence in person , although Care Commission staff do not act as expert witnesses . Any oral evidence given by Care Commission representatives would , other than in exceptional circumstances at the discretion of the relevant GMC Committee, usually be given in public , although the witness can ask that their identity is not revealed.

Should the Care Commission provide documents for use by the GMC, such documents will normally be disclosed to the doctor or doctors concerned, if any, by the GMC.

Examples of how the two organisations will exchange information and co-ordinate their activity include:

  • The Care Commission and the GMC will share information about trends, concerns, data, approaches and initiatives, which are relevant to the shared aim of protecting the safety and well being of vulnerable people, improving the quality of care services and helping registered medical practitioners to provide high quality patient care.
  • The GMC will inform the Care Commission of any investigations it conducts which raise significant issues about health care governance in independent healthcare services, including failures in information, appraisal and review systems and, in appropriate cases, will disclose to the Care Commission information about individual medical practitioners. The Care Commission should also provide this information as appropriate to the GMC about independent healthcare services and about individual medical practitioners.
  • The Care Commission will inform the GMC of any issues emerging from its activities, or specific concerns within a care service, which raise significant issues about the fitness to practise of individual registered medical practitioners.
  • Each organisation will notify the other of information they receive about concerns relevant to their responsibilities. This might include anonymous and unsubstantiated reports where the organisation with the information considers that it should notify the other organisation.
  • If asked, each organisation will endeavour to assist the other in securing expert advice and provide information for investigations and initiatives to promote the objectives of the two organisations, as needed and to the extent that it is reasonably able to.
  • The organisations will share details of their procedures for dealing with complaints and guiding principles for initiating an investigation or assessment or enforcement action.
  • The organisations will share details of their registration procedures, including the Care Commission's registration processes and the GMC's revalidation of medical practitioners.
  • Each organisation will consult the other on internal guidelines or staff handbooks, where they relate to the other organisation's responsibilities or interests.

Communication issues

The Care Commission and the GMC will also collaborate on relevant external communications. This will include, for example:

  • Sharing and working together on relevant drafts, including sections of reports and guidance, as appropriate, in order to ensure factual accuracy, to benefit from each other's knowledge and expertise, and to promote consistency of advice.
  • Involving each other, as appropriate, in conferences and other public discussion.
  • Assisting each other's activities to disseminate relevant information.
  • Involving each other, as appropriate, in working groups, meetings and discussions between organisations on matters of mutual relevance.
  • Ensuring that potential and actual complainants receive accurate and helpful information on the appropriate avenue for pursuing any concerns.

Referring issues from the Care Commission to the GMC relating to an individual registered medical practitioner

An inspection or investigation conducted by the Care Commission, or information received by the Care Commission, may identify an issue that might raise a question about an individual doctor's fitness to practise. The information could relate to, but is not restricted to, complaints, deaths, injuries and alleged misconduct resulting in harm, adverse incidents/events, clinical and performance indicators, patient satisfaction surveys or a registered medical practitioner's health.

In such a case, the first course of action for the Care Commission staff will be to discuss their concerns with the Independent Healthcare Division Manager and registered provider or service manager with a view to resolving the issue. Where appropriate, the Care Commission might suggest that the provider refers the registered medical practitioner to the GMC. This would satisfy the Care Commission that the provider was fulfilling their responsibilities as the registered provider of a care service . Where the Care Commission considers that the registered provider is obliged to refer the medical practitioner to the GMC but has failed to do so, the Care Commission will report the issue to the GMC. In either instance, the Care Commission may consider taking regulatory action against the registered provider under the Regulation of Care (Scotland) Act 2001.

Where the registered provider is also a registered medical practitioner, and , following discussion with the Independent Healthcare Division Manager, it is judged that the issue constitutes a concern which should be reported to the GMC, the Care Commission would communicate directly with the GMC.

The Independent Healthcare Division Manager will consider , after obtaining legal advice if required :

  1. Whether to inform a GMC named person of the situation informally and without naming (unless requested) any individual registered medical practitioner.
  2. Whether to refer an individual practitioner or practitioners to the GMC.
  3. Whether other courses of action are also possible or necessary, on a case-by-case basis.

Care Commission staff will be guided by the following principles when referring a doctor to the GMC:

  • Care Commission staff will work within the existing framework of responsibilities. Employment by the Care Commission does not confer any specific responsibilities for monitoring standards of professional conduct of registered medical practitioners.
  • Care Commission staff who are registered with the GMC have an additional responsibility to act within their professional code of conduct. Care Commission staff should also keep the registered provider fully informed whether the registered medical practitioner is employed by that provider or working on an independent contractor basis.

Care Commission staff should also keep the registered provider(s) fully informed of the service(s) in which the registered medical practitioner is employed or working on an independent contractual basis.

In all cases, Care Commission staff may seek informal or formal advice from the GMC contact points (listed at Annex A).

Referring issues from the Care Commission to the GMC relating to healthcare governance systems failure in independent healthcare services

Where Care Commission staff consider that failures in any of the health care governance systems in any independent healthcare service could compromise safe practice, they will raise this concern explicitly with the Independent Healthcare Division Manager at the Care Commission. He/she will decide whether to contact the GMC.

The Care Commission and the GMC will continue jointly to consider how the Care Commission's activities relate to any processes that are relevant to GMC revalidation.

Referring issues from the GMC to the Care Commission

In keeping with the character of their working relations, the GMC and the Care Commission will discuss matters as openly and as regularly as possible by both formal and informal contact. The GMC may raise issues with the Care Commission through these meetings.

Personal information is subject to the common law duty of confidentiality, and related legislation and should not normally be disclosed without the consent of the subject. The law permits the disclosure of confidential information where a countervailing public interest can be identified. Such a public interest might relate to the proper administration of justice and to the prevention of wrongdoing.

Under Section 35B(2) of the Medical Act 1983, as amended, the GMC may disclose to any person any information relating to a practitioner's conduct, professional performance or fitness to practise which the GMC consider to be in the public interest to disclose. The GMC's policy intent is to disclose such information to the Care Commission when the GMC considers that to be in the public interest. The GMC may write formally to the Independent Healthcare Division Manager to disclose information about a fitness to practise investigation and/or to invite the Care Commission to consider appropriate action. Any formal approaches to the Care Commission will be taken by, or on behalf of, the Director of Fitness to Practise. The person referring the issue to the Care Commission will decide, on a case-by-case basis, whether it is appropriate to identify to the Care Commission the doctor being considered by the Fitness to Practise Directorate. The GMC will only disclose information if such a disclosure is consistent with the common law duty of confidentiality and the Data P rotection Act 1998. The Care Commission will assess any information or invitation received against its guiding principles.

Information passed to the Care Commission may result from fitness to practise investigations. These investigations may relate to individual medical practitioners with whom the Care Commission has a formal relationship. For example, the medical practitioner may be a registered provider, a manager of a registered service, an employee of a registered service, or a doctor providing a service on an independent contractual basis. Also, performance assessments under the GMC fitness to practise procedures may identify matters that impact adversely on the safety and welfare of service users or unlawful action by the service provider.

Investigations and inquiries relevant to both bodies' functions

It is possible that an investigation by the GMC into a doctor's practice could coincide with a Care Commission investigation or inspection at the doctor's place of work. Other statutory agencies may also be involved. Should such a situation arise, both organisations will be guided by the following principles:

  1. Care Commission and the GMC will co-operate closely with each other. This will necessitate planning activities so that they are complementary, keeping each other informed of developments, sharing information (within legal limitations) in order to minimise burdens and enable greater efficiency and effectiveness, and pooling effort wherever possible. Care must be taken at all times not to contaminate a trail of evidence which is the subject of either party's enquiries.
  2. Care Commission and the GMC will clarify boundaries of responsibilities and remits for the two investigations. Whilst those conducting investigations will work closely together, the investigations would remain separate and the limitations of each investigation will be clearly defined.
  3. The Care Commission and the GMC will recognise any police investigation. Care must be taken not to interfere with due process or contaminate criminal enquiry evidence.

Reconciliation of Disagreement

Any disagreements will normally be resolved amicably at the working level. If this is not possible senior managers at both organisations should seek to settle any issue. The Director of Operations at the Care Commission and the Director of Fitness to Practise at the GMC will jointly be responsible for ensuring a mutually satisfactory resolution and will become personally involved only where necessary.

Review of this Memorandum of Understanding

This Memorandum will be reviewed annually by the named contacts listed at Annex A. They will report their review to the Independent Healthcare Division Manager at the Care Commission and the Director of Policy and Corporate Affairs at the GMC, who will jointly decide whether and how to report both to the Care Commission and to the members of the General Medical Council.

This Memorandum, and working relationships, will also be reviewed if necessary following any pertinent changes to legislation, policies, procedures and structures of the parties concerned.

Each organisation will endeavour to ensure that their staff are aware of the content of this Memorandum – and any revisions - and the responsibilities it places on each individual member of staff.

Signed: ___________________________ Date: ______________________

Finlay Scott

Chief Executive

GMC

Signed: ___________________________ Date: ______________________

Jacquie Roberts

Chief Executive

Care Commission

Annex A

Contact details

C ARE COMMISSION

Jacquie Roberts
Chief Executive
Compass House, 11 Riverside Drive, Dundee, DD1 4NY
Tel: 01382 207100 Fax: 01382 207289
E-mail: jacquie.roberts@carecommission.com

Responsible for: Reconciliation of Disagreements

David Wiseman
Director of Operations
Compass House, 11 Riverside Drive, Dundee,DD1 4NY
Tel: 01382 207100 Fax: 01382 207289
E-mail: david.wiseman@carecommission.com

Responsible for: Legal Services and Information Governance

Annabell Fowles
Head of Legal Services
Compass House, 11 Riverside Drive, Dundee, DD1 4NY
Tel: 01382 207100 Fax: 01382 207289
E-mail: annabell.fowles@carecommission.com

Responsible for: Development and Implementation of Memorandum of Understanding between the Care Commission and the General Medical Council

Susan Brimelow
Manager - Independent Healthcare Division
1 Smithhills Street, Paisley PA1 1EB
Tel: 0141 843 4230 Fax: 0141 843 4289
E-mail: susan.brimelow@carecommission.com

Dr Graham Strang
Medical Adviser
Independent Healthcare Division
Springfield House
Laurelhill Business Park
Stirling FK7 9JQ

Tel: 01786 406502 Fax: 01786 406364
E-mail: graham.strang@carecommission.com

GENERAL MEDICAL COUNCIL

Finlay Scott
Chief Executive/Registrar
0207 189 5015
opce@gmc-uk.org

Regents Place
350 Euston Road
London
NW1 3JN

Responsible for: formal review of memorandum

Jackie Rowley
Director of Communications
0207 189 5410
JRowley1@gmc-uk.org

Responsible for: Memoranda and liaison with other organisations

Helen Chandler
Strategy and Planning
0207 189 5027
hchandler@gmc-uk.org

Responsible for: Scottish Affairs, Development and Implementation of Memorandum of Understanding between the Care Commission and the General Medical Council

Jane Todd
Head of Scottish Affairs
35 Thistle Street
Edinburgh
EH2 1DY
0131 240 6411
jtodd@gmc-uk.org


Responsible for: Fitness to Practise


Paul Philip
Director of Fitness to Practise
0207 189 5124
pphilip@gmc-uk.org

Jackie Smith
Head of Investigations
0207 189 5132
jsmith@gmc-uk.org

Responsible for: Registration

Martin Holt
Head of Applications
0161 923 6629
mholt@gmc-uk.org