Memorandum of Understanding: General Medical Council

A memorandum of understanding between the NHS Practitioner Health (NHS PH) and the General Medical Council (GMC)

August 2022

BACK TO MAIN INDEX

Purpose

1. The purpose of this memorandum of understanding is to set out a framework between the General Medical Council (GMC) and NHS Practitioner Health (PH) to ensure that effective channels of communication are maintained between the GMC and NHS PH.

2. This memorandum relates to the areas of interface between the GMC and NHS PH, clarifies respective roles and responsibilities and outlines mechanisms in place to promote effective liaison.

3. The agreement does not affect existing statutory functions or amend any other policies or agreements relating to the activities of the GMC and NHS PH.

Functions of the GMC and NHS PH

The General Medical Council

4. 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 public by ensuring proper standards in the practice of medicine.”

5. The GMC has statutory functions under the Medical Act 1983, which requires it, among other things, to take action when concerns are raised about the performance, conduct, or health of individual doctors which call into question the doctor’s fitness to practise.

NHS Practitioner Health

6. NHS Practitioner Health is a free, confidential NHS service for doctors and medical trainees working and/or living in England and Scotland. Medical students are not eligible for the service. Practitioner Health will  provide advice, assessment, treatment and case management services. Where necessary, they will arrange onward referral to specialist services.

Practitioners accessing Practitioner Health will have health concerns that relate to:

• a mental health or addiction problem (at any level of severity).

7. The NHS PH service is commissioned through NHS England and by the Scottish Government and is a self- referral service. Health care organisations may seek advice or make referrals.

Colleagues, family and friends of doctors with health concerns may also contact the service for advice. Referrals outside of this commissioned route will be subject to other contract or individual funding agreements with commissioners. Details for accessing support outside of these commissioned routes can be provided by contacting the service. NHS PH provides assessment and treatment of all other Doctors s via  contracted or individual funded routes.

Confidentiality

8. The GMC has a statutory duty under Section 35B(4) of the Medical Act 1983 to publish, in such a manner as it sees fit, a range of decisions by medical practitioner tribunals, interim orders tribunals the  Investigation Committee, and undertakings agreed with doctors. However, it has a discretionary power to withhold any information concerning the physical or mental health of a person which it considers to be  confidential, and where it considers it appropriate to do so.

9. The GMC does not publish information relating solely to a doctor’s health. It treats this information as confidential. This means it does not publish the details of conditions or undertakings that directly relate to a  doctor’s health.

Where details regarding a doctor’s health are disclosed during any part of a hearing which is held in public, by any party, this information is redacted from the published decision(s).

10.Doctors approaching NHS PH for help need to be assured that they have the same rights to confidentiality as any other patient. To this end, NHS PH has devised a confidentiality policy for doctors which will be found on the NHS PH website.

11.The Medical Director(s) and CEO of NHS PH will ensure that appropriate internal escalation procedures are in place to support the referral of doctors to the GMC where they hold information about their health, performance or conduct that suggests they pose a risk to patients, public confidence in the profession and / or the maintenance of proper professional standards.

Thresholds for referral to the GMC

12.The GMC thresholds guidance describes the thresholds for referral to the GMC. It should be possible for the majority of health conditions to be managed at a local level without the need for referral to the GMC.  The GMC only needs to be made aware of a doctor’s health condition if it poses a risk to patients or might be a contributory factor to clinical or misconduct concerns.

13.The GMC Outreach Service comprises locally based senior staff whose role is to collaborate with doctors, healthcare providers, educators and other organisations. This includes providing support on thresholds  for referral to the GMC, the sharing of fitness to practise case related information and the making of revalidation recommendations. An Employer Liaison Adviser from the GMC Outreach Service and representative from GP Health will meet several times a year. Outside of these meetings, GP Health should access the contact for the GMC Outreach Service identified at Annex A to seek advice on thresholds for referral on an  'in principle’ or a named doctor basis.

Potential areas of communication

14.Communication between the GMC and NHS PH service is based on an overriding duty to protect patients while being fair to doctors and protecting confidential health information. Areas of potential  communication between the GMC and the NHS PH service include the following (the list is not intended to be exhaustive):

a. Pre-referral discussion with the GMC Employer Liaison Adviser ‘in principle’ discussion about how best to manage concerns about a doctor’s fitness to practise and whether or not the GMC would need to be  informed – this could be on an anonymised or named doctor basis

b. Post-referral discussion about a named doctor who has been referred to either organisation, where there are concerns about the safety of patients under the care of the doctor or concerns about the doctor’s vulnerability, to coordinate activity where appropriate.

Pre-referral discussions ‘in principle’

15.Where the NHS PH service needs ‘in principle’ advice about whether to make a referral to the GMC about a doctor’s fitness to practise, they will arrange a pre-referral discussion ‘in principle’ with their GMC  Employer Liaison Adviser or with the contact for the GMC Outreach Service identified at Annex A.

16.Both the NHS PH service and the GMC are approached for advice by organisations which have concerns about the health of particular doctors; the purpose of these discussions is to determine whether the  organisation should take further steps locally, refer to the GMC and / or refer to the NHS PH service.

17.Where NHS PH is approached for advice and it is not clear if the matters raised by the enquiring organisation raise a question about a doctor’s fitness to practise and meet the threshold for referral to the GMC,  NHS PH will arrange a pre-referral discussion ‘in principle’ with the GMC Employer Liaison Adviser.

18.In these cases, consent should be sought from the enquiring organisation before the discussion, and if not provided there should be an assessment of whether the risk is such that the information should be  disclosed without consent. If the nature of the risk is not such that it would be appropriate to disclose the information without consent, the enquiring organisation should be offered appropriate contact details for the  GMC so they may conduct their own discussions. Should NHS PH need to provide contact details for the GMC, they should give the enquiring organisation the details for the operational contact identified at Annex A.

Post-referral discussions about individual doctors

Cases under investigation/monitoring by the GMC

19.Whenever the GMC receives a complaint about a doctor an initial assessment is conducted. The complaint may include information which indicates the doctor may be unwell and provisional enquiries can be  conducted at the initial assessment stage to help the GMC better understand the nature of the doctor's health condition to ensure an investigation is only initiated where this is necessary. Where the concerns about  the doctor are solely about a doctor's health the GMC generally undertakes provisional enquiries.

20.Where the complaint raises issues which call the doctor’s fitness to practise into question, the GMC’s fitness to practise procedures are engaged and an investigation will follow. In these cases, for doctors who  appear to have a mental or physical health condition, the GMC will ask the doctor if they are currently undergoing assessment or treatment by NHS PH. If so, it will, with the doctor’s consent, seek relevant  information from NHS PH.

21.If an assessment finds the doctor's fitness to practise is impaired solely on the grounds of the doctor's health condition, the GMC will seek to resolve the investigation as swiftly as possible consensually through  health undertakings.

Performance issues may often also be resolved by consensual performance undertakings. Referral to tribunal may on occasion be necessary if a doctor lacks insight, fails to comply with measures necessary to  protect patients or where there are serious misconduct concerns.

22.Any information provided to the GMC by NHS PH will be considered by GMC decision makers and Medical Practitioner Tribunal Service (MPTS) panels, alongside other sources of information about the doctor’s health, in relation to the doctor’s fitness to practise.

23.The GMC may, usually in cases relating solely to the doctor's health, be able to pause a case at the outset (or at any stage of the process) to enable a doctor to complete treatment for an acute illness. NHS PH reports may be useful in deciding to pause a case.

24.The GMC can also use NHS PH reports for the purposes of making a GMC decision to avoid the need for a doctor to undergo a formal GMC health assessment if they address the key questions relating to risk  required by GMC decision makers. A template containing these key questions is attached at Annex B.

25.Where a doctor agrees undertakings with the GMC or where a Medical Practitioners Tribunal places conditions on a doctor’s registration, the GMC will monitor the doctor’s compliance with their restrictions.

26.Where a doctor is under investigation/being monitored by the GMC and is also under the care of NHS PH, the NHS PH service will inform the GMC whether they are acting in a treating capacity or as a support  group. If the NHS PH service is acting in a treating capacity, they will provide a named person with whom the GMC can liaise.

27.The NHS PH service will ensure that any information arising from their monitoring of the health of a doctor also being investigated or monitored by the GMC, that indicates the doctor has breached restriction(s)  imposed on their registration and/or are not complying with advice on managing their health condition, and/or their condition appears to pose a risk to their patients, will be shared with the GMC as soon as possible.

Where there are concerns about the vulnerability of a doctor being investigated or monitored by the GMC, the GMC may wish to disclose information about the context of its investigation or information about the doctor’s health to NHS PH. Before making a disclosure, the GMC will seek the doctor’s consent. Where the GMC has not been able to obtain consent, it will consider if sharing information is exceptionally justified,  for example because the doctor may pose an imminent or immediate risk of serious harm to themselves or others.

Doctors being treated/monitored by NHS PH

28.When NHS PH receives a referral (self-referrals or referrals from an employer/contracting organisation) they will ask the doctor/referring organisation if the doctor is currently under investigation or being  monitored by the GMC and perform a registration check to ascertain if restrictions are in place.

29.If the doctor or referring organisation indicates that the GMC is currently investigating or monitoring, NHS PH will seek the doctor’s consent to contact the GMC to explain that the doctor has sought NHS PH  intervention.

If consent is not forthcoming, NHS PH will consider whether disclosure to the GMC is required, without consent, using the criteria set out above.

Lawful exchange

30.The GMC and NHS PH are subject to a range of legislative duties in relation to information governance, including the Data Protection Act 1998, Human Rights Act 1998, and the Freedom of Information Act  2000. This document sets out the approach to the routine exchange of information between the two organisations within this legal framework.

31.Both organisations hold and use information about organisations and individuals to perform their core functions. The GMC and NHSPH will share information where it is necessary in order to perform these  functions effectively and where it is in the public interest.

32.The organisations recognise that this exchange of information needs to be carried out responsibly and within the guidelines set out in this MoU.

33.It is understood by both organisations that statutory and other constraints on the exchange of information will be fully respected, including the requirements of data protection legislation (including the Data  Protection Act 2018 and the General Data Protection Regulation ((EU 2016/679) as applied in the UK), the Human Rights Act 1998 and the common law duty of confidentiality.

34.Where information shared under this MoU falls within the scope of a request for information under either the Freedom of Information Act 2000 (FOIA) or data protection legislation, the organisation receiving the request will consult the other party before any disclosure is made. This is so that they are aware of the potential impact of any disclosure on the work of the other party. Both organisations recognise that the final  decision on disclosure will rest with the organisation that receives the request.

Data protection

35.Both organisations recognise their respective responsibilities as data controllers under data protection legislation (including the Data Protection Act 2018 and the General Data Protection Regulation ((EU  2016/679) as applied in the UK). Both will comply with any data sharing code published by the Information Commissioner under that legislation.

36.The following principles will apply to the sharing of personal information:

a. There must be a fair and lawful basis for sharing information.

b. Information must only be used for the purpose stated at the time it is shared.

c. Information to be shared will be limited to what is necessary for the purpose and will be anonymised or pseudonymised where appropriate.

d. Shared information that is not in the public domain must be treated as confidential and must not be shared with other parties without the written agreement of the organisation that provided the information.

e. Information must be transmitted securely, for example by secure email or other agreed method.

f. Information must be stored and processed securely and in a manner that reflects its sensitivity for example, where shared information includes special category and/or criminal information.

g. Shared information must not be stored or shared outside the UK or European Economic Area without prior written agreement and appropriate assurances in place.

h. The organisation receiving personal data will apply a reasonable retention period based on the purpose for which it was shared.

i. Each organisation will act as an independent data controller and take appropriate steps to protect the confidential nature of documents and information that the other may provide.

Resolution of disagreement

37.Where any issues arise which cannot be resolved at an operational level, the matter will be referred to the MoU managers identified at Annex A to ensure a satisfactory resolution.

Review and Governance arrangements

38.This MoU will have effect for a period of 36 months commencing on the date which it is signed by the Medical Director of the GMC and the Medical Director of NHS PH.

39.Both bodies have identified a MoU manager at Annex A and these will liaise as required to ensure this MoU is kept up to date and to identify any emerging issues in the working relationship between the two  bodies.

40.The MoU managers may coordinate a formal review of this MoU at any time for the duration of this MoU. The purpose of such a review will be to consider the operational effectiveness of this agreement in  enabling both bodies to fulfil their function.

Annexe A

The Memorandum of Understanding will be managed on behalf of the two bodies by the following contacts:

Managers for the MoU

The General Medical Council
Anna Rowland
Assistant Director of Policy and Business Transformation, Fitness to Practise Directorate
General Medical Council

The NHS Practitioner Health
Dr Zaid Al-Najjar
Medical Director
General Practitioner Health Service

Operational contacts

The General Medical Council
Helen Sinclair
Head of Development & Specialties, Outreach Service
General Medical Council

The NHS General Practitioner Health Service
Sam Godwin/Dionne McCaffrey
Director of Operations
NHS General Practitioner Health Service

Annexe B

Key questions relating to risk required by GMC decision makers:

1. What is the formal diagnosis and likely prognosis? (Please use ICD framework)

2. What is the doctor’s current state of health (including risk of harm to self or others)?

3. Is the doctor currently fit to practise medicine safely?

4. What type of monitoring or supervision (if any) would need to be in place to allow the doctor to work safely?

5. What formal treatment and support has been/are being provided to the doctor?

6. What objective evidence is there to support the presence of:

i. insight into the condition? (including restricting/stopping work/seeking support in the event of a relapse)
ii. improving or stable health?
iii. concordance with treatment?
iv. abstinence (if applicable)?