Introduction The Clinical Disputes Forum (CDF) established the private practice steering group in May 1999, after the development of the Pre-action Protocol. Concern had been expressed about the lack of a consistent complaints process in private hospitals and clinics and about the apparent lack of accountability for resolving complaints, particularly where there was a clinical component associated with specialist (i.e. consultant) care for clinical STD testing. It was felt that a code of practice for complaints in the private sector should be developed, following the principles of the pre-action protocol over The STI Clinic case. At the same time, however, the Independent Healthcare Association (IHA) had been developing a Code for their member hospitals, although progress had been slow in obtaining support from other professional and consumer organisations for Inter Agency Disputes.
IHA Code of Practice In the first part of its work the steering group brought together representatives of the IHA and British Medical Association (BMA), together with interested parties from the CDF including lawyers, Action for Victims of Medical Accidents (AVMA), the General Medical Council (GMC), the medical defence organisations, dentistry and the NHS. There was much discussion based essentially on the IHA’s draft Code, in part because of differences between the approaches of the IHA and BMA; but, after a number of meetings, a degree of consensus was achieved and the IHA were able to finalise their Code (Handling Patients’ Complaints – A Code of Practice for members of the Independent Healthcare Association).
The Code had three main components: an initial phase in the hospital to which the complaint related; an appeal to a higher authority, usually the chief executive of the group of which the hospital was a member; and an independent external adjudication. In 2000 the IHA Board decided to recommend implementation of the Code in its member hospitals for a year in the first instance, as a pilot. The CDF received the Code and noted the decision to run the pilot for a year. The IHA has now revised the Code, having taken account of the first year’s experience, and will shortly be publishing the revised version.
Code for Private Clinics, Practices and Practitioners It became apparent, during the work on the IHA’s Code, that the Government would be extending the regulation of the independent healthcare sector and that this regulation – under the auspices of the National Care Standards Commission (NCSC) - would, in addition to private hospitals, include wholly private clinics, practices and practitioners. This regulation, and the associated standards, would cover – amongst other things – the complaints process to be used by these practices and practitioners. The IHA clearly anticipate that their Code will be acceptable to the NCSC but the Code only covers their members i.e. private hospitals and some larger clinics. The steering group (with the support of the CDF), therefore, decided to draft a code that would be complimentary when managing disputes for the IHA’s Code, but more relevant to smaller clinics and practices.
In view of the fact that the dental profession were already reviewing their own complaints procedures, representatives of the General Dental Council and British Dental Association were invited to join the steering group. The Independent Doctors Forum (IDF) was also invited because it speaks for many practitioners in full-time private practice on dispute resolution.
Regulatory appeals Isabel Nisbet From its earliest days, the Clinical Disputes Forum has included members drawn from two of the statutory regulatory bodies governing the health professions - the General Medical Council (GMC) and the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC). Many clinical disputes lead to action against health professionals under the regulators' disciplinary processes, and some of these end up in the courts, notably through a complex variety of appeals arrangements which have grown up incrementally. Although this area of activity was not at the historical core of the CDF's interests, in September 2000 the Forum agreed to establish a sub-group to consider one aspect of it: the mechanisms for appeals by health professionals against decisions by regulatory bodies limiting their right to practise. This exercise was unusual for the CDF, not only in its subject-matter, but also in its timing.
When the sub-group was established, the Government was consulting on proposals to establish separate Independent Appeals Tribunals - below the level of the Courts - for the proposed new regulatory bodies for nurses, midwives and health visitors (the Nursing and Midwifery Council) and the professions supplementary to medicine (the Health Professions Council), and it seemed likely that this would be used as a model for other professions. Also, the Lord Chancellor had called into question the continuation of the role of the Judicial Committee of the Privy Council to hear appeals against the GMC, the General Dental Council and the General Osteopathic Council by stating in a written Lords Answer that "there [were] strong arguments for dealing with [those] appeals at a lower judicial level".
Government decisions on those matters had not yet been made, and there was an opportunity for the Forum to bring together all the interested parties, including patient representatives, lawyers acting on both sides of regulatory cases, and members of the forum who could bring a wider legal perspective, with a view to influencing the final decisions. As proposals for legislation were imminent, it was unlikely that there would be time for the subgroup to produce a draft report, which could be consulted on in the normal way, and finally reach consensus on a final report. Instead, the sub-group, which met eight times after November 2000, produced a paper entitled "Issues for discussion" (reproduced at Appendix 8) and shared it at an early stage with officials from the Department of Health and the Lord Chancellor's Department . Government decisions on the mechanism for health regulatory appeals were published in the autumn of 2001 in the Health Service Reform and Health Care Professions Bill, which at the time of writing (April 2002) is still before Parliament. Appendix 8 has been annotated to set alongside the views of the subgroup the corresponding provisions in the Bill. Thus Appendix 8 can be read as a detailed commentary on the proposals in the Bill for regulatory