PRIMARY MEDICAL PERFORMERS LISTS
Delivering Quality in Primary Care
Advice for Primary Care Trusts on list management
This advice should be read in conjunction with the NHS (Performers Lists) Regulations 2004 (Statutory Instrument 2004 No. 585)
CONTENTS
Subject Paragraph
Introduction
Scope of this Advice 1
General 1.1
Distinction between these procedures and employment contract 1.5
procedures
Aim of the Arrangements 2
The Quality Background 3
Legal changes 3.1
Quality Improvement Initiatives 3.4
Equality and Fairness 4
Involving the Local Medical Committee 5
General
Local Regulation 6
Grounds for Action 7
Efficiency 7.4
Fraud 7.6
Suitability 7.10
List Management and GMS/PMS Contract Disputes 8
Annual Census Information 9
Applications for Inclusion on a Performers List
Information a Doctor must Provide 10
Doctors in Training – GP Registrars and Modernising Medical Careers 10.2
Consents, Declarations and Undertakings 11
Assessment of Applications by PCTs 12
Checks that should be Performed by PCTs 13
References 13.3
CFSMS 13.6
FHSAA(SHA) 13.7
Criminal Records Bureau 13.8
General Medical Council 13.12
Significant Breaks in Career History 13.14
Grounds for Refusal to Admit a Doctor to the Performers List 14
Mandatory Refusal 14.2
Discretionary Refusal 14.3
Does a National Disqualification seem justified? 14.5
Consideration of Alternatives 15
Deferring a Decision to Include a Doctor 15.1
Conditional Inclusion 15.4
Removal from the Performers List and Restrictions on Continued Inclusion
General 16
Grounds for Removing a Doctor from the Performers List 17
Mandatory Removal from a Performers List 17.2
Discretionary Removal from a Performers List 17.3
Discretionary Removal on Efficiency Grounds 17.8
Discretionary Removal on Fraud Grounds 17.10
Discretionary Removal on Suitability Grounds 17.12
Does a National Disqualification seem justified? 17.14
Contingent Removal from a List 17.15
Suspension
General 18
Suspension as a Neutral Act 18.1
Duration of Suspension 18.4
Criteria for Suspension 19
Period of Suspension 20
General Procedure for Suspending a Performer 21
Reviewing and Removing Suspensions 22
Payments to Suspended Doctors 23
Withdrawal from a List
Performers who work elsewhere 24
Performers’ Right to Withdraw from a List 25
Restriction on Withdrawal from a List 26
Investigations
General 27
The Investigating Officer 28
The Role of the NCAA 29
General 29.1
Involving the NCAA during an Investigation 29.6
Failure by a Performer to Co-operate with the NCAA 29.8
Hearings
The Panel 30
The Panel’s Proceedings 31
Clinical Input 32
Appeals
The Right of Appeal 33
Appeal Handling by PCTs 34
Right of Appeal to the High Court 35
Notifications
The Duty to Notify 36
Who Needs to be Informed? 37
What Information should be shared? 38
Stage 1: Initial Information Sharing 38.1
Stage 2: Providing Further Information 38.4
Notifications to the GMC 38.6
Disclosing Information to Others 38.9
Sharing Information about National Disqualifications 38.10
Keeping Information up to date 38.11
Performers List Notifications and Alert Letters 38.12
National Disqualifications
Definition 39
Applications for National Disqualification 40
Review of a National Disqualification 41
ANNEXES
Applications for inclusion in a Primary Medical Performers List:
Information, Undertakings, Declaration, Certificates & Consents Annex A
Sexual Offenders Act 1997: Offences to which Part 1 of the
Sexual Offenders Act 1997 Applies Annex B
Discretionary Decision-Making under the NHS (Performers Lists)
Regulations: Criteria that must be Considered Annex C
Circumstances where an Application to Join a List can be Deferred Annex D
Dealing with Performance – Fitness to Practice: Clinical Capability to
Deliver Adequate Standards of Care Annex E
Introduction to the NHS Counter Fraud & Security Management
Service (CFSMS) Annex F
Notification: Contact Details in Devolved Administrations Annex G
The Family Health Services Appeal Authority (FHSAA) and the
Family Health Services Appeal Authority (Special Health Authority)
(FHSAA(SHA): Who Does What? Annex H
INTRODUCTION
1.1
This
advice is primarily for Primary Care Trusts (PCTs) on managing their primary
medical performers lists, including admission of doctors to the lists,
conditional admission of doctors to the lists, suspension, contingent removal
of doctors from the lists, and doctors’ disqualification for inclusion in
any list.
1.2
It
is not a substitute for the provisions in the NHS (Performers Lists)
Regulations and should not be seen as such. Any decisions taken by PCTs must
comply with the provisions in the Regulations. The decisions should also refer
to the Regulations when that is appropriate.
1.3
The
regulations and this advice apply to all general medical practitioners who are,
or who apply to become, primary medical performers. A general medical
practitioner must be listed as a primary medical performer in order to treat
NHS patients in a primary care setting. This applies whether a practitioner is
a general medical services (GMS) contractor, a personal medical services (PMS)
provider, a doctor who has been engaged or employed by a contractor or provider
to perform the services (whether directly or via some other body or agency), or
a practitioner who is employed to perform the services by a PCT.
1.4 This advice describes procedures that apply in England only. Following the custom in regulations, references to “he” or “him” include “she” or “her”, and so on. Any references to notification of decisions in writing include electronic notification.
Distinction between these procedures and employment contract procedures
1.5 Where a contractor, provider or PCT employs a practitioner under a contract of service (or contract for services), any action that is taken under the provisions of the Performers Lists Regulations does not preclude other action that may be available under the terms of the contract. In the case of an employment contract with a NHS body this is dealt with in “Maintaining High Professional Standards in the Modern NHS” (Department of Health, December 2003).
2.1
The
NHS (Performers Lists) Regulations provide a framework within which PCTs can
take action if a medical performer’s personal and/or professional conduct,
competence or performance gives cause for concern.
2.2 Protection of patients should be the overriding consideration when considering whether a performer should be admitted to a list, suspended or removed from a list, whether restrictions should be placed on a performer’s position on a list, or whether the performer should be excluded from all lists (disqualification).
Legal changes
3.1
In
the past there had been concerns about the way in which the NHS handled issues
involving practitioners’ suitability, efficiency and probity. Evidence
from a number of very serious cases (most notably, but not exclusively, that of
Harold Shipman) indicated that there were shortcomings in the way that quality
issues were addressed in primary care, and in the processes available for
dealing with them. In August 2000, the NHS Plan proposed that PCTs should be
responsible (and accountable) for the formal processes.
3.2 Following passage of the primary legislation necessary to amend the 1977 NHS Act, regulations were made as part of a phased programme to bring all general medical practitioners within a statutory PCT list management framework. For GP Principals this was done by means of amendments to the NHS (General Medical Services) Regulations 1992. For GP non-Principals this was done by means of the NHS (General Medical Services Supplementary List) regulations. For practitioners in PMS it was done by means of the NHS (Personal Medical Services) (Services List) and the (General Medical Services Supplementary List) and (General Medical Services) Amendment Regulations 2003. However the Health & Social Care (Community Health & Standards) Act 2003 further amended the 1977 NHS Act in a way that permitted a single list of practitioners performing primary medical services to be established in each PCT. The NHS (Performers Lists) Regulations laid down that this would happen on 1 April 2004. Copies can be found on http://www.dh.gov.uk/PolicyAndGuidance/OrganisationPolicy/PrimaryCare/ManagementPrimaryCarePractitioners/ManagementPrimaryCarePractitionersArticle/fs/en?CONTENT_ID=4000586&chk=xPZe8h
3.3 Some PCTs delegate responsibility for managing list management processes to common services organisations. Where this happens the common services organisation has management accountability to the PCT for its work. However legal responsibility and accountability for decisions to include, refuse to include, conditionally include, contingently remove, review conditions, remove and suspend practitioners rests with PCTs. Such decisions should always be taken by PCTs.
Quality Improvement
Initiatives
3.4
Recent
years have
seen a range of new initiatives aimed at tackling poor performance and assuring
and improving quality. The appraisal and revalidation processes encourage
practitioners to maintain and develop the skills and knowledge they need for
their work.
3.5
The
National Patient Safety Agency (NPSA) is developing non-punitive and anonymous
reporting and learning systems for patient-related adverse events, near misses
and medical errors.
3.6 The National Clinical Assessment Authority (NCAA) is helping PCTs find ways of identifying poor performance early, before harm comes to patients, and is providing objective assessments of the nature and seriousness of problems and the steps that might be taken to address them.
3.7
PCTs
are advised to contact and consult the NCAA as early as possible when action is
being considered in any case involving clinical performance or competence. They
should also keep in regular touch with the NCAA whilst a case is progressing.
The early intervention and continuing involvement of the NCAA is intended to
help PCTs maintain momentum when dealing with performance or competence
concerns and so reduce the numbers of practitioners who need to be
suspended for thee reasons. Most cases can be managed locally with the
NCAA’s help. See the Investigations section for more about involving the
NCAA.
3.8 PCTs are already required to notify the NCAA of all decisions they take to refuse to admit or conditionally admit doctors to their lists, and to suspend, remove or contingently remove doctors from their lists. In individual performance or competence cases, except where immediate suspension is necessary to protect patients, any PCT that has not already involved the NCAA in attempting to resolve the case is advised to contact it before suspending a doctor or applying any of the sanctions available under the Performers Lists Regulations.
4.1
There is no place for
discrimination on grounds of gender, faith, race, disability, age or sexual
orientation in the operation of any of the procedures dealt with in this
document. No person should be treated less favourably than anyone else would be
treated in the same or similar circumstances.
4.2
Every case should be
dealt with according to individual circumstances. The utmost care should be
taken to avoid any risk of imposing preferences or prejudices, or of targeting
the performance of individual performers because they appear to the PCT, or to
PCT staff, to fit a stereotype. This is particularly important in the content
of decision-making based on grounds of “suitability” and
“efficiency”.
4.3 Any decisions taken by PCTs need to be procedurally robust. They will want to ensure that their decisions are likely to be held to be lawful if they become under judicial scrutiny. PCTs that act inappropriately may well find their decisions overturned if a practitioner appeals to the Family Health Services Appeal Authority (FHSAA) and may be vulnerable to other legal challenge.
5.
Involving the Local
Medical Committee (LMC)
5.1
Local arrangements need
to command the confidence of practitioners locally. PCTs are likely to find
that involving LMCs will help to publicise the local procedures within the
profession, and to develop them, in a way that maintains their confidence.
Although the law does not compel PCTs to consult LMCs on these matters, it
would be good practice to do so.
5.2 LMCs have always been able to contribute to local management of primary medical services through local arrangements (in some cases by statute). They are likely to have views on how the local panels dealing with efficiency, suitability and fraud issues might be constituted and operated. They may be able to identify sources of professional advice that will have the confidence of clinicians. Where ill-health may be the cause of poor performance, the LMC’s networks may be able to offer support to the doctor, and to take responsibility for alerting the PCT if the doctor is refusing help and putting patients at risk.
GENERAL
6.1
The
effect of the 1977 NHS Act and the NHS (Performers Lists) Regulations is to
allow PCTs to regulate the performance of primary medical services in their
areas. Formally, this means that PCTs have the power to prevent a general
medical practitioner from performing the services, or to place restrictions
(conditions) on a GP with which he is obliged to comply.
6.2
Since a GP must be on a
PCT Performers List to perform services for patients, a PCT will do this by:
·
Refusing to admit the
practitioner to its list
·
Placing the practitioner
on its list subject to conditions
·
Removing the
practitioner’s name from its list
· Contingently removing the practitioner’s name from its list (that is, permitting the doctor’s name to stay on its list only if he agrees to follow, and then observes, the PCT’s conditions)
6.3 A PCT can also suspend the doctor’s name from its list and so prevent him from performing the services, if this is needed to protect patients or is otherwise in the public interest, whilst:
·
The
PCT itself investigates whether the doctor’s name should be removed or
contingently removed from its list
·
Investigations and/or
proceedings by regulatory bodies or the police are under way
·
Awaiting the outcome of
an appeal the doctor has made to the FHSAA against the PCT’s decision to
remove (or contingently remove) his name from its list
7.1
PCTs
may take decisions on three different grounds. These are set out in section 49F
of the 1977 NHS Act. They are:
·
Efficiency
·
Fraud
· Suitability
7.2
Clearly these grounds
can overlap, or decisions may be taken on the basis of more than one ground.
Although this advice is not intended to restrict the circumstances in which any
one or more of the grounds may be used, the following notes may help indicate
when each might be appropriate. PCTs could also refer to the FHSAA’s
web-site, and the decisions published there. The site is at
http://www.fhsaa.nhs.uk/fhsaa/index.html.
But PCTs should note particularly that these decisions simply reflect the
circumstances of particular cases that the FHSAA has dealt with on appeal. They
should not therefore be taken automatically as precedents for the approach a
PCT should take to the handling of an individual case, however ostensibly
similar they may seem.
7.3
Whatever ground may be
appropriate, when considering or making decisions about a doctor’s
inclusion or conditional inclusion in a list, or a doctor’s suspension,
removal or contingent removal from a list, PCTs should take account of good
Human Resources practice and seek advice from Human Resources advisers whenever
appropriate.
“Efficiency”
7.4
These grounds may be
used when the inclusion of the doctor on the PCT’s list could be
“prejudicial to the efficiency of the service” that is performed.
Broadly speaking, these are issues of competence and quality of performance.
They may relate to everyday work, inadequate capability, poor clinical
performance, bad practice, repeated wasteful use of resources that local
mechanisms have been unable to address, or actions or activities that have
added significantly to the burdens of others in the NHS (including other
doctors).
7.5
An
example of what could be classed as inadequate capability and poor clinical
performance is included at Annex E. However, PCTs are
recommended strongly to obtain
appropriate clinical advice (including NCAA advice) in all such cases.
“Fraud”
7.6
“Fraud” is not
defined in law but there is a common understanding as to its definition. It
happens when someone has obtained or attempted to obtain resources to which
they are not entitled. Fraud may involve the misappropriation (or attempted
misappropriation) of NHS resources for personal gain or the gain of others.
7.7
Providing that there are
sufficient substantiated facts to satisfy a PCT that a person has secured (or
attempted to secure) financial or other benefits for himself or others, and
that person knew that had no such entitlement, a criminal conviction is
unnecessary.
7.8
The
outcomes of fraud investigations can be far from clear-cut. PCTs should
consider the possible implications of any findings, or of any professional
disciplinary action, civil or criminal sanctions that might be imposed. The
Department would always expect a practitioner to declare the outcome of any
professional, civil or criminal sanctions to his PCT.
7.9
An
outline of the work of the NHS Counter Fraud and Security Management Service
(CFSMS) is provided at Annex F. Paragraphs 10 to 12 of
Annex F deal with the scope of “fraud” and related investigations in
more detail.
“Suitability”
7.10
“Suitability”
as a ground for action could be relied on where:
·
It
is a consequence of a decision taken by others (for example, by a court, by a
professional body, or the contents of a reference)
· There is a lack of tangible evidence of a doctor’s ability to undertake the performer role (for example, satisfactory qualifications and experience, essential qualities)
7.11 The term is used with its everyday meaning and so provides PCTs with a broad area of discretion. Suitability and efficiency grounds may overlap and in many cases a PCT may find itself able to take action against a doctor under either ground. It is unlikely that a PCT would be accused of acting wrongly by using efficiency grounds to remove a doctor who had been convicted of serious violence, or by using unsuitability as a ground for removing a doctor who had defrauded the NHS.
8.
List Management and
GMS/PMS Contract Disputes
8.1
The
steps PCTs may take under the Performers Lists Regulations to regulate the
performance of primary medical services are quite distinct from the
arrangements they have for ensuring that GMS contractors and PMS performers
comply with their contracts to provide services. The two systems should not be
confused.
8.2 Nevertheless, concerns about individual doctors’ performance of the services may sometimes raise questions about the way in which the services are provided. It is irrelevant whether the doctor who performs a service also provides it as a contractor or provider or – if so – whether that doctor practices alone or in partnership. PCTs may take parallel action to investigate issues of efficiency, probity and/or suitability issues in relation to the performer (under the Performers Lists Regulations), and any issues relating to the provision of the service by the contractor or provider (under the GMS Contracts Regulations or PMS Agreements Regulations). When parallel investigations are necessary, care should be taken to keep the issues separate and to make the reasons for the investigations clear to the subjects of the investigations.
9.1
Statistical information
about the decisions PCTs have taken under the Performers Lists Regulations is
collected annually. PCTs should keep records of the decisions they take in the
following categories:
·
Mandatory and
discretionary decisions to refuse to include practitioners in their list
(separated into grounds of fraud, unsuitability, and efficiency. In cases where
more than one ground has been relied on, the main ground should be used)
·
Conditional inclusion
decisions
·
Deferred applications
·
Removals (separated into
grounds of fraud, unsuitability and efficiency, as above)
·
Suspensions
9.2
Maintaining these
records is quite distinct from the obligation PCTs have to notify the Family
Health Services Appeal Authority (Special Health Authority) (FHSAA(SHA)), the
NCAA and others formally, whenever they take decisions under the Regulations
about individual performers.
9.3 From time to time, PCTs may also be asked on behalf of the Secretary of State, the NCAA, other NHS bodies or others with a legitimate interest, to provide details of any performer whose suitability, efficiency or probity is or has been under investigation. They are asked to make every effort to co-operate and to share such information, having regard to the principles of confidentiality and their responsibility to protect patients and services.
APPLICATIONS FOR INCLUSION ON A PERFORMERS LIST
10.
Information a Doctor must
provide – Regulations 4(1),
4(2) and 23(1)
General
10.1 Doctors who want to join a Performers List must apply in writing to a PCT in whose locality they intend to perform services. They need to include a range of information and copies of evidence about their qualifications, registration and experience. A list of the information needed can be found at Annex A.
Doctors in Training
10.2 GP Registrars must apply to join a list before their vocational training in general practice begins. However it is not always possible to complete the admission process before the date on which they are due to begin the training. If the start of training is delayed it can have a serious impact on their training programmes, and mean that they are unable to complete the minimum 12 months training in general practice that the Vocational Training Regulations require. That in turn may have major implications for their training and future careers. Therefore, regulation 22(3) of the Performers Lists Regulations allows a GP Registrar to perform primary medical services despite not being included in the list. This applies:
·
As
long as the Registrar has applied to join the performers list before the date
on which the training is due to begin; and
· Continues until either the PCT gives the Registrar the decision on the application, or for two months beginning with the date on which the training begins, whichever is the earlier
10.3 The GMS Contract Regulations (Paragraph 53(2)(c) of Schedule 6), and PMS Agreement Regulations make equivalent provision by allowing training practices to employ GP Registrars for up to two months of their training periods whilst their applications are processed. PCTs are asked to develop close liaison arrangements with Postgraduate Deans and to give priority to the processing of list applications from GP Registrars.
10.4 Implementing “Modernising Medical Careers” pilot schemes also means that trainee doctors will also be placed in general practices for varying periods during the second part (“F2”) of their foundation training. The position of these doctors depends on their registration status:
·
A
doctor who is provisionally registered under sections 15 or 21 of the Medical
Act does not need to be listed for training purposes under an F2 scheme
· This does not apply to a doctor who is undertaking F2 training with limited or full registration. The position of these doctors is being clarified and further advice will be issued in due course. In the meantime it has been decided that they be treated as GP Registrars for listing purposes, and should apply to join a performers list on that basis.
11.
Consents, Declarations and
Undertakings – Regulations 4(3), 4(4) and 23(2) and 23(3)
11.1
Applicants must also
include a series of consents, undertakings and declarations. A list of these is
also set out in Annex A.
11.2
The
declarations are intended to ensure that a doctor applying to join a list
provides sufficient information about his past and career to allow the PCT to
take an informed and defensible decision about whether to admit the doctor to
its list. For this reason, the Regulations permit a PCT that considers it has
insufficient data on which to base a decision to seek any additional
information it reasonably requires in order to reach one.
11.3
The
undertakings commit a doctor to notify the PCT within seven days of any
material change to the information and declarations he has provided (for
example relating to criminal or regulatory body investigations).
11.4 From 1 April 2004, a doctor must also undertake to register certain gifts (regulation 23(2)(c) and 23(2)(d). GMS contractors and PMS providers are now required to keep a register of all gifts they and their staff receive from patients or their relatives that have a value (or estimated value) of more than £100. The Performers Lists Regulations require performers to notify their contractor or provider if they or their spouse receives such a gift so that it can be noted in the register. For this purpose “spouse” includes any person – whether or not of the opposite sex - with whom the performer has a relationship equivalent to that of husband and wife. Where a performer is employed by the PCT, the employment contract should specify what gifts should be reported to the PCT (and the employment arrangements may specify the current arrangements that apply to NHS staff).
12.
Assessment of Applications
by PCTs
12.1
Each
PCT is responsible for ensuring that any doctor it admits to its Performers
List has the necessary clinical skills and experience to perform primary
medical services. Assessment of each application should take into account the
information and declarations made by the doctor, any additional information
provided by the doctor, and any other information that the PCT has in its
possession that it considers relevant. It should be based on the following
criteria:
·
Whether the doctor is
suitably experienced
·
Whether the doctor is
suitably qualified
·
Whether the doctor is an
appropriate person to deliver health care and treatment to the PCT’s
patients
· Whether the doctor is free from regulatory body sanctions, PCT suspensions or national disqualification
12.2
There are no age limits
on entry to, or remaining on a primary medical performers list.
12.3 From January 2005, all doctors wishing to practice must hold a licence to practice issued by the General Medical Council (GMC). The licence means that the GMC considers that the doctor is properly qualified and that he has agreed to take part in periodic revalidation. From 1 January, by law, a doctor will not be able to practice without a licence. Further information about revalidation can be found at www.gmc-uk.org/revalidation
13.
Checks that should be
performed by PCTs
General
13.1
PCTs
should check:
·
Whether the doctor is on
another PCT list and, if so, that he has given notification that he intends to
withdraw from that list
·
That
the information provided by the doctor is correct
·
Details of the doctor's
employment/partnership history
· References
13.2
Good
HR principles and practice should be followed. For example, an occupational
health check should be sought where necessary.
Checking References
13.3
Where a doctor cannot
provide references relating to posts lasting at least three months (for example
where his preferred working pattern is a series of short-term locum positions),
PCTs may consider separate periods of work within one general practice over a
twelve-month period that average out at least 13 weeks.
13.4
If
initial references are not satisfactory, it is for individual PCTs to agree
whether further references should be sought. However, in an individual case, it
would not be good practice for PCTs to pursue references indefinitely on the
off chance that one will eventually be satisfactory.
13.5 If the PCT is satisfied that a doctor cannot meet the normal conditions it may accept references from any other clinicians who it believes can comment objectively on the doctor's clinical abilities. When requesting references the PCT must state that it needs clinical (not general) references. If it decides to ask referees to complete pro-forma rather than free-style references, it would be good practice to discuss their propo