A Memorandum of Understanding between the Scottish Public Services Ombudsman and the General Medical Council

July 2007 (reviewed January 2011)

Purpose of the Memorandum of Understanding

1. 1.  The objective of this Memorandum is to set out the framework that the Scottish Public Services Ombudsman (SPSO) and the General Medical Council (GMC) have agreed for co-operation and collaboration.
   
   2.  The purpose of the relationship is to ensure that the two organisations complement and strengthen each other's respective roles and functions. Collaboration between the SPSO and the GMC is necessary to ensure that complaints about medical practitioners and services provided by or on behalf of the National Health Service in Scotland (the NHS) are dealt with effectively and timeously with the appropriate involvement of both the SPSO and the GMC. The purpose of this memorandum is to set out the arrangements for co-operation and communication between the SPSO and the GMC and to clarify the responsibilities of the two bodies.
   
   3.  This memorandum does not affect existing statutory functions or amend any other policies or agreements relating to the activities of the SPSO or the GMC.
   
   4.  This memorandum is not a contract and is not legally enforceable. However, the GMC and the SPSO agree to adhere to its principles and to show proper regard for each other's activities.
   
   5.  The SPSO and the GMC will keep this protocol under review and update it as necessary.
   

Responsibilities of the parties to the Memorandum of Understanding

Scottish Public Services Ombudsman

1. 6.  The responsibilities of the SPSO are set out in the Scottish Public Services Ombudsman Act 2002. They include investigating and reporting on complaints that maladministration, failure to provide a service or failure in a service by NHS organisations and any body providing NHS services (including dentists, pharmacists and opticians) has caused injustice or hardship to a member of the public. The SPSO is generally debarred from disclosing any information obtained in connection with a complaint. However, where information is to the effect that a person is likely to constitute a threat to the health or safety of patients, the SPSO may disclose that information to any person to whom the SPSO thinks it should be disclosed in the interest of the health and safety of patients.

General Medical Council

1. 7.  The GMC is a statutory body responsible for regulating the medical profession in the United Kingdom. Its purpose is to:
   1. 'protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine.'
      
2. 8.  The GMC has statutory powers under the Medical Act 1983, as amended, to take action when concerns are raised about the performance, conduct or health 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.
   
   9.  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.
   
   10.  The GMC licenses doctors to practise medicine in the United Kingdom. The law gives the GMC four main functions:
   1. a. Keeping up to date registers of qualified doctors.
      b. Fostering good medical practice.
      c. Promoting high standards of medical education and training.
      d. Dealing firmly and fairly with doctors whose fitness to practise is in doubt.
      
3. 11.  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 the doctor accepts that their fitness to practise is impaired and agrees to improve within a structured framework. 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.
   
   12.  Doctors wishing to practise medicine in the UK need to hold both registration and a licence to practise from the GMC.
   
   13. It is proposed that licensed doctors will be required to satisfy the GMC regularly (normally every five years) that they remain up to date and practising to the appropriate professional standards. They will do this by drawing evidence from all of their actual medical practice. 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.
   

Functions of the Memorandum of Understanding

1. 14.  This Memorandum relates to the areas of interface between the SPSO 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.
   
   15.  Interfaces may arise between the GMC and the SPSO: 
   1. a. Through on-going exchange of information and co-ordination of activity.
      b. If the SPSO wishes to bring specific concerns to the GMC's attention.
      c. If the GMC wishes to bring specific concerns to the attention of the SPSO.

Exchange of information and coordination

1. 16.  Subject to the statutory and other constraints, the working relationship between the SPSO 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 contacts and others with relevant responsibilities at the SPSO and the GMC, whose details are at Annex A.
   
   17.  The SPSO and the GMC will agree to exchange such information as is necessary to fulfil their statutory functions and to ensure the safety and well being of people who use health services.
   
   18.  It is understood by the SPSO 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 and the Human Rights Act 1998. Similarly the SPSO falls under the remit of the Freedom of Information (Scotland) Act 2002 and the GMC is a named body under the UK Freedom of Information Act 2000.
   
   19.  Each organisation will respect and, as appropriate, take steps to protect the confidential nature of documents and information that the other may provide.
   
   20.  Where information exchanged between the SPSO 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 its part may be required, the referring body will seek consent to disclose.
   
   21.  The GMC has the power, subject to certain restrictions, to demand documents from a third party, for use within its Fitness to Practise procedures. This could include documents provided to or prepared by the SPSO in confidence for an unrelated purpose.
   
   22.  Should the SPSO provide documents relating to specific doctors, clinical incidents or investigations or any other information pertinent to Fitness to Practise for use by the GMC, such documents will normally be disclosed to the doctor or doctors concerned, if any, by the GMC.
   
   23.  Examples of how the two organisations will exchange information and co-ordinate their activity include:
   1. a. The SPSO and the GMC will share information about trends and issues in their respective casework which may be of interest to the other organisation.
      b. Each organisation will consult the other on internal guidelines, staff handbooks and training, where they relate to the other organisation's responsibilities or interests.

External Communication Issues

1. 24. The SPSO and the GMC will also collaborate on relevant external communications. This will include, for example:
   1. a. Feedback and training on issues arising from their casework for NHS organisations and practitioners.
      b. Ensuring that their respective roles are understood by NHS organisations and practitioners, patients and other stakeholders.
      c. Sharing and working together on relevant drafts, including sections of reports, as appropriate, in order to ensure factual accuracy, to benefit from each other's knowledge and expertise, and to promote consistency of advice.
      d. Involving each other, as appropriate, in conferences and other public discussion.
      e. Assisting each other's activities to disseminate relevant information.
      f. Involving each other, as appropriate, in working groups, meetings and discussions between organisations on matters of mutual relevance.
      

Referring issues

1. 25.  The SPSO will provide to the GMC information it has obtained suggesting that a doctor is likely to constitute a threat to the health or safety of patients where it judges that action by the GMC is the appropriate way of dealing with those concerns. In all cases SPSO staff may seek informal or formal advice from the GMC contacts (listed at Annex A).
   
   26.  The SPSO will ensure that potential and actual complainants receive accurate and helpful information on the appropriate avenue for pursuing any concerns.
   
   27.  In keeping with the character of their working relations, the GMC and the SPSO will discuss matters as openly and as regularly as possible by both formal and informal contact. The GMC may raise issues with the SPSO through these meetings or at any other time by contacting one of the individuals named at Annex A.
   
   28.  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 SPSO when the GMC considers that to be in the public interest. The GMC may write formally to the SPSO to disclose information about a fitness to practise investigation and/or to invite the SPSO to consider appropriate action. Any formal approaches to the SPSO will be taken by, or on behalf of, the Director of Standards & Fitness to Practise. The person referring the issue to the SPSO will decide, on a case by case basis, whether it is appropriate to identify to the SPSO the doctor being considered by the Standards & 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 Protection Act 1998.
   
   29.  Information passed to the SPSO may result from fitness to practise investigations. These investigations may relate to individual medical practitioners with whom the SPSO has a formal relationship. For example, the medical practitioner may be an adviser to the SPSO. Where appropriate the GMC may refer the matter to the local NHS complaints system and will notify the SPSO of whatever action has been undertaken.
   

Investigations and inquiries relevant to both bodies’ functions

1. 30.  It is possible that an investigation by the GMC into a doctor's practice could coincide with an SPSO 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. a. The SPSO 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 statutory 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 or breach any common law duty of confidentiality.
      b. The SPSO 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.
      c. The SPSO and the GMC will recognise any police investigation - whether or not ordered by the Procurator Fiscal. Care must be taken not to interfere with due process or contaminate criminal enquiry evidence.
      

Reconciliation of Disagreement

1. 31.  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. One of the SPSO Senior Management Team and the Chief Executive and Registrar at the GMC will jointly be responsible for ensuring a mutually satisfactory resolution and will become personally involved only where necessary.

Monitoring and Review of this Memorandum of Understanding

1. 32.  This Memorandum will be reviewed annually by the named contacts listed at Annex A. They will report their review to one of the SPSO Senior Management Team and the Director of Strategy and Communications at the GMC who will decide whether and how to report both to the Ombudsman at the SPSO and to the members of the General Medical Council respectively.
   
   33.  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.
   
   34.  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: ______________

Jim Martin
Scottish Public Services Ombudsman
 

Signed: _____________________________                Date: ______________

Niall Dickson
Chief Executive and Registrar,
General Medical Council