Feature

Thou shalt not disparage another doctor

Recent events in Bristol have brought into question the ability of the medical profession to regulate itself for the public good. In particular, the General Medical Council has found difficulty in putting the interests of patients above those of professionals, argues Jean Robinson

Medical ethics is a growth industry. When there is no professional left in the NHS to bandage a wound, mend a fracture or fetch a bed pan, we shall have a lavish supply of ex-doctors, nurses and midwives who have written theses on beneficence and autonomy, and who will parrot their empty phrases with endless confidence.

No one, so far as I know, has written a study of the ethics of medical care embodied in the guidance issued by the General Medical Council, how it has evolved, and how it has affected the care patients actually receive. Yet it is a rich area of study for the historian or philosopher — not to mention the consumer activist.

As a former member of the Standards and Ethics Committee of the GMC which drafts the ethical code, I am only too well aware of the delicate backstairs manoeuvring that takes place to balance skilled protection of the profession with genuine ethical concerns. Successive editions of the GMC code not only document the changing ethos within the profession, and how it responds to public and political pressure, but can also have direct effects on patients.

How far did the past creed of the GMC — ‘Thou shalt not disparage another doctor’ — contribute to the recent tragedies in children’s heart surgery at Bristol? Should we blame the GMC at all? After all, for the most part they merely express and reinforce the existing international medical culture: don’t sneak on your chums.

When I was appointed to the GMC in 1979 as a lay member, the code of conduct in the famous ‘Blue Book’ (so called because it had a blue cover) told doctors: ‘The Council also regards as capable of amounting to serious professional misconduct the depreciation by a doctor of the professional skill, knowledge, qualifications or services of another doctor.’¹

It appeared under the heading ‘Advertising, canvassing and related professional offences’ and followed a preamble urging doctors to ‘refrain from self-advertisement’. The implication was that if a doctor suggested a colleague was not up to scratch, the most likely motive was not to save patients but to drum up trade. In forbidding depreciation the GMC explained it was helping patients, because doctors skilled at self-promotion might not be the best practitioners.

Doctors can get struck off the register only for ‘serious professional misconduct’, and criticising a colleague clearly rated as such a serious crime it could result in loss of livelihood and reputation. Although in my 14 years on the Council I do not remember any doctor being charged with such an offence, when I spoke at medical schools and conferences I found that students and doctors seemed more aware of that phrase in the Blue Book than any other, and often quoted it when I challenged them for taking no action on incompetent colleagues. No heads had to roll to keep the team in order; the mere existence of the words in the book were enough.

It was Esther Rantzen — a television journalist, not an ethicist — who brought about a rapid change in the 1987 edition of the Blue Book. A That’s Life television programme showed patients badly scarred when tattoos were removed by incompetent laser treatment. Other doctors knew what was happening, but said they had not reported the culprit to the GMC because the ‘depreciation’ clause forbade it.

In the new version, ‘depreciation’ became ‘disparagement’ and was still forbidden, but the GMC at last gave doctors permission to express a different opinion from their colleagues: ‘It is improper for a doctor to disparage, whether directly or by implication, the professional skill knowledge, qualifications or services of any other doctor, irrespective of whether this may result in his own professional advantage, and such disparagement may raise a question of serious professional misconduct. It is, however, entirely proper for a doctor, having carefully considered the advice and treatment offered to a patient by a colleague, in good faith to express a different opinion and to advise and assist the patient to seek an alternative source of medical care.

‘The doctor must however always be able to justify such action as being in the patient’s best medical interests. Furthermore a doctor has a duty where the circumstances so warrant, to inform an appropriate body about a professional colleague whose behaviour may have raised a question of serious professional misconduct or whose fitness to practise may be seriously impaired.’²

While avoiding disparagement comes first, warning endangered patients is allowed but not insisted on. However, as a last resort, a doctor has a duty to act if he or she thinks a colleague is dangerous, by telling ‘an appropriate body’ — but which one?

So from 1987 whistle-blowing doctors potentially had GMC backing. From 1990 Dr. Steve Bolsin, consultant anaesthetist at Bristol, was raising concerns about the success rate of children’s heart operations. He told all the ‘appropriate bodies’ he could think of — the trust, the Royal College of Surgeons and the Department of Health — but the operations continued. The GMC’s Professional Conduct Committee ruled that by May 1993 surgeon James Wisheart should have been aware of his high mortality rate.³

One of the crucial aspects of the 1987 code is that doctors were actually allowed to tell patients if they thought they would be safer elsewhere. That section was amended and then disappeared from later editions. Even so, a powerful code internalised at medical school and continually reinforced during training prevents doctors from taking the ultimate step.

In many ways the Bristol story echoes Sandra Coney’s account of the cervical cancer scandal in New Zealand, where unethical research was conducted on women without their knowledge or consent.⁴ Two doctors on the inside tried for years to raise questions about it, but even when women were dying they did not go public. Only when the story reached a woman’s magazine was action taken. A judicial enquiry strongly criticised eminent doctors at a major teaching hospital.

Often it seems that only direct patient action can be effective. I know of a small market town where an orthopaedic surgeon was leaving a trail of mutilated and disabled people. Protests and individual complaints escalated, but the doctor refused study leave. Only when the victims got together and announced that they were taking a stall in the local market place to advertise their plight the following week did he decide to take immediate early retirement.

An amended version of the GMC code appeared in 1991. This is the crucial version which covers most events for the Bristol case. ‘Disparagement’ had disappeared — by now even the GMC had seen it was a PR liability. The relevant section is now called ‘Comment about professional colleagues’, and its mincing language caused howls of derision when I read it to consumer groups.

‘Doctors are frequently called upon to express a view about a colleague’s professional practice. This may... happen in the course of a medical audit or peer review procedure... It may also occur in a less direct and explicit way when a patient seeks a second opinion, specialist advice or an alternative form of treatment.

‘Honest comment is entirely acceptable in such circumstances, provided that it is carefully considered and can be justified, that it is offered in good faith and that it is intended to promote the best interests of patients. Further, it is any doctor’s duty where the circumstances so warrant, to inform an appropriate person or body about a colleague whose professional conduct or fitness to practise may be called into question or whose professional performance appears in some way deficient. Arrangements exist to deal with such problems and they must be used... However, gratuitous and unsustainable comment which... sets out to undermine trust in a professional colleague’s knowledge or skills is unethical.’⁵

Honest comment to patients was ‘acceptable’ but apparently only if the doctor was absolutely sure he or she could defend making it, and only if the patients actually sought a second opinion and asked. This could not help the children Dr. Steve Bolsin was worried about — their parents had no idea they needed a second opinion. The 1985 version, which allowed doctors to ‘advise and assist’ patients to go elsewhere might have protected them better.

The code was totally revamped in 1995. No longer a blue book, it appeared in attractive, easy to digest, separate booklets. In the core booklet, Good Medical Practice, under the heading ‘Working with colleagues’ we find: ‘You must not make any patient doubt a colleague’s knowledge or skills by making unnecessary or unsustainable comments about them.’⁶

The crime is not disparaging as such, but sharing the knowledge with patients — letting it be known outside the club. By implication it might be allowable to make a patient doubt a colleague’s skills by making comments which are both necessary and sustainable, but it certainly isn’t explicit. Even the permission to make honest comment to patients in stringently controlled circumstances has vanished.

Action on incompetent colleagues now appears in a separate section: ‘You must protect patients when you believe that a colleague’s conduct performance or health is a threat to them. Before taking action you should do your best to find out the facts. Then if necessary you must tell someone from the employing authority or from a regulatory body. Your comments about colleagues must be honest. If you are not sure what to do, ask an experienced colleague. The safety of patients must come first at all times.’

Action must be taken, but it is all internal: Dr. Bolsin most certainly collected facts, told the employing authority and experienced colleagues. Much good it did the patients.

The latest version of Good Medical Practice, now in press, simply repeats the 1995 section on not making any patient doubt a colleague’s knowledge or skills. There is more detail about what doctors can do within the system if they think colleagues are dangerous.

‘You must follow your employer’s procedure or tell an appropriate person from the employing authority, such as the director of public health, medical director, nursing director or chief executive or an officer of your local medical committee or a regulatory body. Your comments about colleagues must be honest. If you are not sure what to do ask an experienced colleague or contact the GMC for advice. The safety of patients must come first at all times.’⁷

Doctors are now given a choice of places to go, but the information is kept within the discreet knowledge of those who can be trusted not to frighten the horses — or rather the patients. There is not even a hint that you could inform local GPs who are referring patients to lethal colleagues. And just how many weeks, months, or years, should medical whistle-blowers wait if effective action does not follow? How high does the mortality graph have to climb?

One aspect of the Bristol case has received little public attention. This is the first time a doctor has been charged with failing to act to protect patients as a manager, although the nursing council (the UKCC) has for years charged nurses as managers for failure to protect patients under their care, particularly in nursing homes.

Having considered the evidence the GMC concluded that Dr John Roylance, the former chief executive of the trust, was guilty of serious professional misconduct and should be ‘struck off’. The decision will send reverberations around the profession. If there is a whistle-blower, a manager who is also a doctor or nurse cannot sit on information which shows patients are at risk.

For all the faults of the GMC, what worries me most is the lack of control of lay managers in the NHS. There is no register from which they can be ‘struck off’. From long experience with voluntary groups and charities, I know of many who failed to take effective action when they knew patients were getting dangerous care. It was far more important to keep things running smoothly, avoid offending the powerful, and protect the reputation of the trust. Managers have not merely failed to protect patients, they have sometimes actively helped doctors to suppress information.

Over and over again, the House of Commons Select Committee or the Parliamentary Commissioner has looked at critical ombudsman reports on hospital maladministration and MPs have asked what happened to the managers concerned. Invariably they have moved higher up the ladder, apparently without a stain on their record. When shall we see a Professional Conduct Committee for them?

© Jean Robinson, 1998.