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Developing Magna Carta Medicorum

Posted by Dr No on 06 January 2015

magna_carta_medicorum.jpgThere are those who want to torpedo the GMC using the Human Rights Act, or even the European Courts, but it must be remembered that such processes are always time-consuming, often futile, and inconveniently prone to blowback, like trying to clear a blocked drain with a toothpick. Instead, we have Magna Carta. As Lord Bagg continues to develop his history of the 1215 Charter, Dr No has been working on Magna Carta Medicorum, a present day Charter to ensure fair treatment of all doctors facing and under professional disciplinary regulation.

We have seen and heard how the current regulatory system fails. It may even be intended to do so, as part of a plan to destroy the perceived - mostly by politicians and lawyers - power of the medical profession, but that is a stray into conspiracy theory country which can wait for another day. If CQC can’t quite cope, then with the GMC it’s NHA, no hope at all. Hopelessly overrun after adopting a policy of encouraging complaints from all and none, crippled by legalism, at once both incompetent and sadistic in its processes, it chases and catches minnows while letting the sharks get away. It preaches candour to others, but fails in candour itself. It preaches the duty of care to others, but itself fails in its duty of care. All in all, it is difficult to imagine how such a dysfunctional organisation came to be placed in a position of such draconian power in today’s Britain.

The answer is that it was imposed, by politicians and lawyers, much as King John imposed self-serving versions of his law on pre-Magna Carta Britain. By 1215, the barons had had enough, and so Magna Carta came into being. Today, our trouble is we have no barons. The BMA is weak and ineffectual, the Colleges, especially but not only the RCGP, are dominated by internal squabbling and external squealing. As a profession too we have been weak and feeble. Consultants and senior GPs could, as individuals, have stood up and said ‘No’ to the fundamental changes imposed on the GMC in the mid-Noughties – but failed to do so. Having failed to sow the seeds of our resistance, we now face the barren landscape of failed regulation that now stretches unending before us, a grim twilight landscape of puckered potholes, twisted truths, blasted hopes and disfigured careers, where the only discernable movement comes from dun GMC goons on patrol, spiked helmets pointed emptily skywards, bayonets at the ready to still those who dare rise above the mud, a grey land of few clean bangs, but many messy whimpers.

But it need not be so. If we turn to Magna Carta, we find some sixty three clauses, many of no relevance (fish-weirs?) to our current dispute, but a few that most definitely are. In particular, we may consider clause (39):

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land

or, in a more Ye Olde version (Magna Carta itself was written in a sort of codified abbreviated Latin):

(39) No freemen shall be taken or imprisoned or disseised [‘de-seizied’ of rights goods etc?] or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

Now, it is clear that the GMC, through the MPTS, has the power to inflict on doctors the diverse calamities listed in the first parts of clause (39), up to the word ‘except’. And ‘except’ is the crucial word, because it says these calamities shall not be inflicted on a free man, ‘except by the lawful judgement of his equals/peers or by the law of the land. So the question arises: are MPTS (Medical Practitioner Tribunal Service) panellists the equals, or peers, of ordinary doctors?

The answer, unfortunately, is they are not. Each panel has three panellists, of which at least one must be medical, and at least one other lay. In practice, this means all panels are made up of either two medical/one lay panellists, or two lay/one medical panellists. In the last ten hearings reported on the MPTS website (as of today’s date), six panels were two lay/one medical, and four two medical/one lay; and of the decisions, eight recorded impairment, with only two recording no impairment, where impairment refers to impairment to fitness to practise. There are probably some interesting statistical tests to be done on these data, but that too will have to wait for another day.

Two lay/one medical panels clearly fall foul of both the letter and spirit of clause (39): lay members, by definition, are not the peers of doctors – that is why and how they are defined as ‘lay’. Some might argue that a medical majority panel is within the spirit if not the letter of clause (39); or alternatively that there are sound and pragmatic reasons to include a lay element, whatever the letter of clause (39), and Dr No might even agree; but the point is that even on mere counts alone for much, if not all, of the time, panel composition ignores the principles of fair justice enshrined in Magna Carta.

Even worse, mere counts alone are not the whole picture. To be equals/peers, the panellists (jurors) must be drawn at random from the equals/peers for the doctor (defendant). Lay panellists, by definition, are not peers, but what about the medical panellists?

Unfortunately, they too have a question mark hanging over them, a question mark they (and the GMC/MPTS) will inevitably deny, but if we are to get to the bottom of things we need to look at that question mark. At any one time there are about 300 panellists in the pool. By some curious numerology, the MPTS considers this number ‘large’ – one supposes all things are relative, more so for the small minded – and assuming let’s say half are medical, about 150 (is that number ‘large’ too, one wonders), the question now becomes: are these medical panellists true equals and peers? Are they representative of the profession at large?

To be representative, the panellists must, as we have noted, be drawn at random from the pool of equals/peers. Unfortunately, again – the whole business seems rather ‘unfortunate’ - the panellists are not drawn at random; instead, they are self-selected (presumably - to imagine they might be invited is connivance too ghastly to contemplate) individuals who choose to apply, and are appointed (or not) against MPTS criteria. Immediately, and unavoidably, given self-selection, the question of bias raises its ugly head. The applicants may be upstanding ordinary members of the medical profession, but they could also be the self-selected upstanding ordinary members of a fictional medical equivalent of ACPO – making about as much sense as allowing real ACPO members to self-select themselves onto ordinary juries, to sit in judgement of ordinary people. Somehow one fears a perhaps understandable excess of zeal, a looking glass world where instead of deluded turkeys voting for Christmas we have hungry gourmets voting for turkeys.

The problem is we simply don’t know how much bias exists in self-selected MPTS appointed panellists; but thankfully the answer is simple. Just as joining the Electoral Register brings about a potential obligation to be a juror, so joining the Medical Register should cause a similar potential obligation (with similar checks, balances and opt-outs to juror appointment) to be a medical MPTS panel member. By and large, costs would be unaffected, because panellists’ costs are much the same, however the panellist got to be there, or may even be less, because random selection from a large pool may turn out cheaper to operate than a complex application and selection process. Add a requirement that all panels must have a medical majority, and perhaps increase panel size to five (better ‘sampling’) and we have gone a long way towards meeting the spirit if not the letter of Magna Carta’s clause (39); and so too towards a clause for Magna Carta Medicorum. In fact, it may just be the only clause we need:

No doctor shall be delayed, or stripped of his rights to practise, or outlawed or exiled from his profession, or deprived of his standing in any way, nor will we proceed with sanctions against him, or send others to do so, except by the lawful judgment of his peers, or by the law of the land.

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