GPs are all too aware of the potential for the GMC to investigate their fitness to practise, but in the MDU’s experience, NHS England’s process for dealing with concerns about practitioners on the performers list are less well known. In fact, these investigations often overlap with the GMC process and both can have significant implications for GPs’ ability to practice.
The MDU has experience of supporting GPs throughout the performers list procedures for clinical matters. Such investigations fall outside the cover provided to GPs in England and Wales under the recently introduced state indemnity scheme and therefore would be covered by the indemnity provided by your medical defence organisation.
If you become aware of an investigation, contact your medical defence organisation as soon as possible.
Here is an outline of how the process works.
The role of NHS England
The national GP performers list replaced the previous system of individual PCT lists and is maintained by NHS England. Its responsibilities are set out in law1 and NHS England has powers to prevent a performer from working in order to protect patients from harm.
NHS England’s local area teams (LATs) have responsibility for the management of the performers list in their area. This includes ensuring that clinical governance arrangements are established to identify concerns, supporting remediation and ensuring clinicians on the performers list remain ‘fit for purpose’ (able to work independently to deliver the full contractual requirements of core primary care services).
In addition, NHS England has established performance advisory groups (PAGs) and performers lists decision panels (PLDP) within LATs. They have a role in considering individual performance cases and ensuring LATs have access to trained case investigators and case managers.
The Framework for managing performer concerns sets out the investigation process. Every case must be dealt with according to individual circumstances, however there are governing principles. These include ensuring fair and equal treatment and avoiding discrimination, being supportive of all involved, confidentiality and ensuring action is appropriate and proportionate. Decisions may also be appealed.
Performance concerns can be raised by employers, CCGs and the GMC, among others, but GPs are also expected to notify NHS England of any change in their personal circumstance that may affect their status on the performers list (a police caution or GMC investigation, for example).
Identifying and addressing concerns
Medical directors are responsible for ensuring the correct process is followed. As well as clarifying the nature of the concern raised, they can get advice from bodies such as the GMC and NHS Resolution’s practitioner performance advice service. The doctor should be informed about the complaint or concern.
In cases where there may be a risk to patient safety the medical director must consider whether there is an immediate need to place restrictions on a doctor’s practice or even to suspend the doctor. If NHS England decides to act with immediate effect their decision must be reviewed by two senior officers, who have not been previously involved, within two working days and the decision must then be considered by a PLDP. If concerns are low risk the investigation is overseen by the performance advisory group (PAG).
The PAG meets regularly in each local area team and their role is to oversee all investigations of practitioner performance and determine the most appropriate course of action. It can instruct specific investigations, suggest voluntary undertakings to be agreed with a performer or suggest a PLDP is convened to consider imposing conditions. In some cases the PAG may also recommend a referral to the GMC or the police.
PLDP hearings are formal proceedings which hear evidence and make decisions on the case, so it is important to have representation from your medical defence organisation for clinical matters. The PLDP can make a number of decisions, which can include taking no further action, imposing conditions or a suspension, referral to the GMC, or even removal from the performers list.
If either the PAG or PLDP determine that a formal investigation is required such as a clinical assessment or clinical notes review, a case investigator will be appointed and the doctor will receive formal terms of reference.
The specifics of each case, actions and decisions are recorded at the time in the GP’s file on the national case management system.
Performers’ list procedures are similar to fitness to practise investigations in that both recognise the value of insight and remediation as in the following fictitious example, based on cases involving our members:
NHS England received a complaint from a patient’s widow that a GP had failed to diagnose bladder cancer. A review of the patient’s records by the practice showed the GP had not acted on a test result showing haematuria, had not followed guidelines and that the notes were of poor quality. The complaint was investigated by NHS England who also passed a concern to the practitioner performance team. The case was referred to the PAG resulting in a clinical record review by a senior GP.
The GP who was the subject of the complaint contacted the MDU for support. The MDU medico-legal adviser listened to the doctor’s description of what had happened and explained the next steps in the process. They agreed on what information should be provided to PAG and discussed ways in which the GP could reflect and remediate.
Following feedback from the review of his records, the GP agreed to undertake further training in note-taking. He also provided NHS England with his written reflection on the records reviewed and the steps he was taking to improve including reading and implementing the relevant national guidelines.
The PAG was satisfied the GP’s actions showed he had taken positive steps to remediate following his error and closed the case without referral to the PLDP or GMC.
Even if significant complaints have been raised about clinical ability, GPs can demonstrate their fitness to remain on the performers list by demonstrating they have reflected on errors and made efforts to address possible weaknesses in their practice.
1. National Health Service (Performers Lists) (England) Regulations 2013