In December 2012, the Health and Safety Executive (HSE) and the General Medical Council (GMC) released a Memorandum of Understanding to improve communication between the two organisations in areas where they share a mutual interest.
The purpose of the memorandum is to:
- clarify the roles and responsibilities
- out mechanisms to promote and improve effective communication and liaison between the two organisations
It does not affect the functions of the HSE or the GMC, which are set out in statute.
The functions of the HSE are set out in the Health and Safety at Work Act (HSWA) 1974. In summary, the role of the HSE is to prevent people being killed, injured or made ill by work, while the HSWA sets out duties employers have towards their employees and others who may be affected by activities carried out at work.
The HSWA, however, does not apply to clinical judgment or to the provision of care, which is left to regulatory bodies such as the Care Quality Commission and the Medicines and Healthcare Products Regulatory Agency. The HSE already has agreements with these two organisations and, with the memorandum, has put in place a similar agreement with the GMC.
The GMC is responsible for the regulation of the medical profession in the UK, its purpose being to 'protect, promote and maintain the health and safety of the community by ensuring proper standards in the practice of medicine'. Under the Medical Act 1983 (as amended), the GMC has four main statutory functions:
- keeping up-to-date registers of qualified doctors
- fostering good medical practice
- promoting high standards of medical education and training
- dealing firmly and fairly with doctors whose fitness to practise is in doubt
Powers are available to the GMC under the Medical Act 1983 when concerns are raised about individual doctors' conduct, performance or health, which are sufficiently serious to amount to impairment of that individual's fitness to practise.
The GMC can only take action where evidence exists that a doctor's fitness to practise may be impaired and their fitness to remain on the medical register without restriction is called into question.
The GMC works closely with the Care Quality Commission to ensure the protection of patients, and it is envisaged that the recent memorandum of understanding with the HSE will further improve both public confidence in both organisations and the protection of the public at large.
How will the GMC and the HSE work together?
The memorandum seeks to ensure 'collaborative working' between the two organisations in that both organisations intend to refer relevant concerns to each other and implement mechanisms to enable communications between them.
The HSE and the GMC seek to share information in circumstances, which may evoke the duties of either organisation.
For example, the GMC will inform the HSE when investigations concerning the individual doctor, patients or employers meet the HSE's incident selection criteria under the Reporting of Injuries, Deaths and Dangerous Occurrences Regulations 1995.
The GMC may have concerns about health and safety standards relating to things such as:
- poor manual handling
- poor maintenance of medical equipment
- inadequate systems of work
- risks to employees or patients
If such concerns come to the attention of the GMC, the memorandum facilitates information sharing with the HSE in relation to these concerns so long as the disclosure of the information is in the public interest. It is important to note that the disclosable information may include the GMC's findings in relation to an investigation into an individual doctor's practice or in relation to a particular place of work.
The policy set out in the memorandum dictates that the GMC may write to the designated HSE contact to disclose the information or it may invite the HSE to consider appropriate action to be taken. Where a referral is urgent, the GMC will notify the HSE by telephone and follow up with written notification.
Conversely, the HSE will inform the GMC where concerns are raised about the fitness to practise of a doctor as a result of an investigation or inspection by the HSE.
It is envisaged that the HSE will refer more concerns to the GMC than the GMC will refer to the HSE. This is because the HSE conducts inspections and investigations and receives information relating to deaths, injuries, complaints and alleged misconduct leading to harm that may lead to concerns being raised about the fitness to practise of individual doctors.
In such circumstances, the HSE will discuss the relevant issues and the possible disclosure of information to the GMC with Health and Social Care Services.
However, information about individual doctors is more likely to require urgent disclosure to the GMC, so telephone notification by the HSE to the GMC is envisaged, which will be followed by written confirmation. The HSE will also inform the GMC of any action it has taken against individual doctors.
Arrangements for information sharing
The memorandum promotes open, regular and honest communication between the two organisations on a formal and informal basis.
The HSE and the GMC seek to encourage this policy through:
- making staff at both the HSE and the GMC aware of the Memorandum
- sharing information and concerns
- inviting contributions to policies and operational guidance, reports and consultations in order to benefit from each other's knowledge and expertise and to ensure that advice provided by either organisation is consistent
- disclosing information toe ach other to promote the objectives of both organisations
The memorandum envisages that some investigations conducted by the HSE will coincide with an investigation being carried out by the GMC and vice versa.
For example, in a case where an incident has occurred in an NHS Trust, the HSE may be investigating the NHS Trust for breaches relating to health and safety, whilst the GMC could be investigating the fitness to practise of a doctor involved in the incident.
In such circumstances, the memorandum encourages the HSE and the GMC to cooperate with each other to the extent that activities to be carried out by one organisation can be planned by the two organisations working together.
The memorandum also expects the HSE and the GMC to keep each other updated in relation to the progress of their respective investigations and to share information in so far as their statutory limitations permit it. The aim of the memorandum is to improve the efficiency and effectiveness of the HSE and the GMC.
There are some dangers that have also been considered by the HSE and the GMC when drafting the memorandum: they must not compromise the investigation being carried out by the other, or contaminate a trail of evidence. This will be extremely hard to avoid when witnesses to a particular incident are interviewed on behalf of the HSE and then by the GMC's legal team or vice versa. In such situations, the Principal Inspector at the HSE will be the main point of contact.
With this difficulty in mind, the memorandum also encourages the HSE and the GMC to ensure that both parties are aware of their respective boundaries of responsibilities and remits of the respective investigations as early as possible; the emphasis being on the two investigations by the two organisations remaining separate whilst staff at each organisation work closely together in relation to the investigations.
Both the HSE and the GMC have agreed that the sharing and disclosure of information should not exceed the limitations imposed by statutes such as the Data Protection Act 1998, the Freedom of Information Act 2000 and the Human Rights Act 1998.
Arguments between the HSE and the GMC
The memorandum covers the possibility that disagreements relating to the sharing information between the two organisations or the running of an investigation may arise.
Both the HSE and the GMC are expected to resolve any such disagreements amicably but if this is not possible, the memorandum makes it clear that the agreed contacts at each organisation will try to settle the dispute and ensure a solution to benefit both organisations. It is also envisaged that the settlement of such disputes may involve senior management at both the HSE and the GMC.
The Memorandum of Understanding was signed by GMC chief executive Niall Dickson and HSE chief executive Geoffrey Podger on 11 December 2012, and it is envisaged that it will be reviewed should any 'pertinent changes' to the policies, procedures and structures of either organisation take place.
If you are being investigated by the HSE for alleged health and safety breaches, or if you are a doctor facing an investigation into your fitness to practise by the GMC, please contact our regulatory team.
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