BMJ 1997;315:1677-1680 (20 December)

Education and debate

Medicine needs its MI5            

Duncan Campbell, investigative journalist ^a

^a IPTV, 45 Frederick St, Edinburgh EH2 1EP duncan@mcmail.com

The time is long overdue to add another arm to the policing of medicine. In this article I suggest changes to lever out of the profession the small minority of doctors who would be guilty of serious misconduct, to the benefit of patients and practitioners alike. On the evidence, most of them might currently reasonably expect to escape either exposure or sanction, for various reasons. We need an organisation that would employ informants and agents, run anonymous telephone "tipoff lines," hire undercover investigators, and use for example, secret recording devices and cameras. Readers who feel that this sort of life should be limited to west Belfast in the 1980s have an understandable case. Such an investigatory recipe might have been even more indigestible six months ago, before Professor David Southall revealed that he had secretly installed hidden cameras in the paediatric wards of the Royal Brompton and North Staffordshire Hospitals. His results—38/39 cases of suspected infant child abuse resulting in care orders and 33/39 in criminal prosecution—both speak for themselves and explain why there was no press backlash to suggest that Southall and his team had breached sacrosanct clinical principles. Read what follows with that in mind.

My proposals are based on personal experience of bringing unethical practitioners before the General Medical Council (GMC) and of acting against unqualified "quacks" at the disreputable end of alternative medicine. All of the four complaints that I have taken to the council have resulted in the practitioner concerned leaving the medical register for life—three practitioners by order of the council's professional conduct committee, one voluntarily. The record of Dr Frank Wells and Peter Jay, who run Medicolegal Investigations (a private medical investigations company), is far more impressive. By last July 17/17 complaints brought to the council by Wells and Jay had resulted in the practitioners being struck off. More are in the pipeline.
 
This 100% success rate with the GMC stands in stark contrast to the average picture at the council, where less than 10% of complaints of serious professional misconduct are taken beyond the preliminary screeners, and at best half of those go on for adjudication. Why is this so?

Many complaints to the GMC should fail because they are vicarious, malicious, or outside the GMC's remit. But many worrying complaints are rejected because complainants have a poor understanding of the evaluative processes inside the GMC. These processes are much more legal than medical, and medically qualified complainants do not necessarily fare better than the lay public, since good medical evidence is not necessarily good legal evidence. The professional conduct committee quite properly acts like a court of law, according to broadly the same rules and requiring facts and documents to be proved in an adversarial setting. The GMC's committees and employees have to approach their tasks with this outcome in mind.

To succeed with the GMC, complainants ideally should have professional or acquired medicolegal skills. They should set out the facts to be relied on in a way that shows the screeners that legal proof is available or that there is an easy and probably successful route to proof. The facts alleged should amount, if proved, to serious professional misconduct. Knowledge of typical, recent, and relevant adjudications by the professional conduct committee is a major asset. This is a lot to expect of a recently damaged patient or a worried doctor concerned about the ethics of colleagues' behaviour.
 

	Medicine needs a better complaints investigation system

 
It is unreasonable and damaging to the interests of medicine to allow this lottery to continue. Very few cases where clinical or research misconduct is suspected command experienced support and investigation at the precomplaint stage. Thus many important cases fall by the wayside because they do not get the resources to make them convincing at first sight.

The media serve the public interest but are not in being for this reason. Medicolegal Investigations is a commercial organisation, working mostly for pharmaceutical companies who suspect research fraud in their trials. They operate in the marketplace. Most media investigations, including my own, have focused on clinical misconduct. But the media are also in the marketplace. The media are primarily an entertainment industry, which by accident rather than design produces quality journalism that is in the public interest. The industry is rightly seen as a court of last resort for whistleblowers and the distressed, but what it can deliver is increasingly limited by whim, fashion, "dumbing down," and the budget managers who today populate our industry as much as yours.

I and my media colleagues have done many investigations of unethical practitioners inside and outside the profession, which, when published, have prompted patients and doctors alike to point us to other cases that unquestionably need attention. But when an editor decides that two medical misconduct stories in a given year fulfils the public's interest, our hands are tied. So do not expect to rely on us. The public interest, and the best interests of patients, therefore needs institutions rather than one investigative firm and a few journalists.

Investigative methods, including special techniques, are necessary if proof of misconduct is to be reliably established. The ways to do this come easily enough to policemen and journalists, but not to doctors and lawyers. Secret cameras are probably the most extreme example of such methods. I have taken (or arranged for others to take) hidden recorders into consultations where we posed as terminally or chronically ill patients, or their friends, to obtain incontrovertible evidence of misconduct.

Without this, we would have nothing of value to show the screener. Complaints would have to rely on patients whose personal recollection of what was said and done in a consultation is limited by the absence of notes and the lack of a record. In contrast, the misbehaving doctor may take notes throughout. Ill and worried patients are likely give poorer evidence than doctors, who may have already acquired court experience. Above all, patients will often not complain until long after the events at the heart of their concerns and will always be vulnerable to destructive cross examination. In cases of terminal or chronic illness, patients may be too debilitated to give evidence or dead by the time the complaint reaches the professional conduct committee. Patients who are badly treated may therefore need the services of sham patients to prove the type of misconduct that they experience.

Worried doctors who witness or suspect professional misconduct are not in a much better position than their patients. Medical whistleblowers still have no safe home, even though the position is gradually improving. Juniors and seniors alike fear reprisals and career curtailment if they speak out, and are right to do so. Consider the case of Dr Stephen Bolsin, the anaesthetist who was the first to highlight the unacceptable mortality in heart surgery operations on babies in Bristol. He was told by hospital managers that his complaint put him, not the surgeons, in jeopardy. He too represents the tip of a large iceberg.

To this may be added the cultural factors, especially for older doctors and those in more close knit institutions, where self interest and laziness easily go hand in hand. Rare too is the whistleblower who does not arrive at the GMC without some personal pathology on show. Complainants are often "difficult" people. It goes with the turf, because otherwise they would long since have given in and gone under. They often have a long history of taking their well founded complaints to bodies that shoo them away. They may already have been ostracised, marginalised, excluded, and become obsessive. The rejection of earlier complaints can complicate and obfuscate evaluation of their primary complaints, as it will be enlarged by legitimate but irrelevant objections to the outcome of other, prior investigations.

Complainants also face the special risk that they cannot expect their role to stay private. The GMC maintains a high standard of confidentiality in the early stages of its work; but if a formal inquiry is launched and a professional conduct committee hearing is held, the successful complainant will inevitably be exposed in the later, wholly public processes. Vulnerable medical complainants may therefore need the services of an investigative agency, which will seek to obtain independent and valid evidence to support their complaint, thus limiting or excluding the possibility of retribution at the hands of powerful members of the profession.

When competently recorded evidence is available, the miscreant practitioner cannot challenge what he or she did in the clinical setting. The results are effective (box). But some may think these investigative methods repugnant. I have lectured about such investigations to medical students and have worried that this may frighten them into switching to safer worlds, such as accountancy. But they need not fear. The broadcast media do not and are not permitted to use techniques such as covert recording unless the following legal "minimisation" criteria are met: firstly, there must be a strong prima facie case that there is misconduct; secondly, other investigative methods must have failed or would by their nature be likely to fail if tried; and thirdly, that the methods proposed are likely to succeed in producing legally valid evidence of misconduct. Decisions on these matters must, by statute, be taken by controllers of broadcasting stations, not by individual journalists. With the incorporation into British law of the European Convention on Human Rights, these boundaries will be even more clearly defined.
 

Cases of misconduct in research fraud that are taken to the GMC represent only the tip of the iceberg,¹ a view that Wells endorses. This was a major reason for the recent founding of the committee on publication ethics.² In dealing with discredited research work and despite the plethora of serious recent cases like Pearce and Anderton, the profession is delivering far less than the public is entitled to demand. When some of a practitioner's research is shown to have been dishonest, it should be elementary to conclude that every part of his or her work is dishonest until the contrary is proved. But the editors of biomedical journals who believe this and act accordingly are still distinguished only by their scarcity.

In my experience, cases of serious clinical misconduct that the media have investigated also represent only the tip of an iceberg. This is especially true in private medical practice: those whom I have investigated had taken their "research" directly into clinical practice, often with tragic consequences.
 

	Shortcomings of General Medical Council

 
The view of self regulation (by the GMC) as "institutionalised conspiracy," which MP Jim Cousins described to parliament in 1995 during the first reading of the Medical (Professional Performance) Bill, may be unattractive to the profession. But he knew what he was talking about; his research was based on constituents' experiences. Whether just or not, the reality is that the GMC's review panels are perceived in responsible quarters as lacking independence. Many members of the council might agree that its remit and resources are too restricted, even though these have been expanded over the past decade.

Everywhere in medical regulation there is inconsistency and muddle. The United Kingdom Central Committee for Nursing and Health Visiting can investigate any sort of misconduct; the GMC cannot. For doctors, the GMC disavows setting professional standards, while the royal colleges will set standards but disavows policing them. The NHS has a range of remedies on offer—notably, for example, the ombudsman. But there is a vast hinterland of fast moving junior doctors, wandering locums of indeterminate skill, and circuses of private practitioners, who can evade all of the regulators.

Notoriously, the GMC is not proactive. It waits for cases to come to it. This means that complaints are limited not only by the problems created by its procedures, but by the willingness of prospective complainants to expend time and effort in, and face the risks of, becoming involved. We are all the losers from that.
 

	New investigative agency needed

 
What is needed is a proper investigative agency to receive and research complaints, and take them up when action may be appropriate. It is more than two years since Professor Ian Kennedy called for an inspectorate to conduct random, routine audits of medical conduct. Let it begin there but extend the idea to cover the problems outlined above.

I suggest an "office for medical standards," which would conduct routine and random medical auditing; provide a safe place where worried staff (or students) could go with their concerns; be an investigative agency that can take plausible complaints of patients (and others) and check, in ways that the complainant cannot, whether a problem may or does exist; review records and publications when fraud or misconduct is suspected. It should also:

• Run a confidential helpline or information service, or both, to receive warnings and tipoffs about fraud or unethical conduct;
• Have the legal power (to be sanctioned at a senior level) to call in or inspect documents and papers held by health service providers (both NHS and private) and by registered medical practitioners;
• Use appropriate investigative methods when these can be justified; and
• Have a remit to conduct reviews of research or clinical practice to report generally on standards.

Such an agency could protect complainants who were vulnerable to reprisals provided that its investigative methods (and results) produced adequate evidence, which either duplicated or could replace the original complaint. After investigation, reports need not necessarily go to the GMC; they could go to the ombudsman or to other NHS bodies.

These proposals do not amount to replacing the GMC or the ombudsman. They would supplement and probably replace the work of the GMC's screeners and incorporate the limited investigative work already undertaken in the NHS by the ombudsman. The decision whether to strike a doctor off would remain with the professional conduct committee. But an office for medical standards would prosecute—in place of the current arrangements.

The GMC might ask that the proposed office should come under its auspices. Such a request should be rejected. The office should be an independent watchdog, carrying out a policing function, whereas the GMC would retain its court and registration function. Thus the new agency could not be accused of being judge and jury in the cases it handles. Self regulation would survive, albeit in a modified form.

The peril of these proposals, some may think, is that Britain might become a more litigious nation—as some states of America notoriously are. I reply that most of the serious professional misconduct is still uninvestigated and unpunished. If changes result in more cases being heard by the professional conduct committee and more doctors being struck off, that is what has always been needed.

Some may also be concerned about the effects of such an agency on the young and the innocent in medicine. I have never believed that the innocent have nothing to fear from surveillance—it has a chilling effect and will in some cases deter proper risk taking and experimentation.

Regulation would be part of the answer. Investigators, like doctors (and broadcast journalists and police officers), would be bound by codes of conduct too. Inevitably, some disreputable doctors would be insufficiently deterred, while reputable practitioners might be made unduly cautious. Balance is the other part of the answer.

Medical regulation currently has a few constables and detectives with limited remits, supplemented by a motley array of amateur assistants. It needs a police force, perhaps even a medical MI5.
 

	References

1. Smith R. Time to face up to research misconduct. BMJ 1996;312:789.
2. Goldbeck-Wood S. Scientists call for whistleblowers' charter. BMJ 1997;315:1252.