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Shipman doesn't make us all bad
SHIPMAN INQUIRY REPORT
Peter Tomlin in
Hospital Doctor 10 March 2005
Recommendations for regulation of doctors post-Shipman Inquiry threaten to undermine their human rights and access to justice, argues Dr Peter Tomlin
There are three distinctive hallmarks which are pathognomic of totalitarianism. These are propaganda, suborning the judiciary and suborning the law.
Hitler's propagandist in the 1930s, Joseph Goebbels, said that if you state a distortion often enough and get others to do the same, it will be believed. If there is a bad Jew, his theory said, all Jews are bad. This was then widely propagated throughout society with horrific consequences.
Initially, the Jews were to be controlled, minutely tested, have their occupations taken away and generally oppressed.
So if there is one bad doctor (Shipman), all doctors are bad or incompetent, they must be minutely and rigorously tested and can have their livelihoods removed. Sounds familiar?
Flawed report
Judges are encouraged in the attack. Shipman Inquiry chairman Dame Janet Smith's seriously flawed report suggests revalidation should be made more rigorous, with possible annual examination of all doctors. The inference is that all doctors are bad and must be tightly controlled.
It is an intellectual conceit that medicine is changing rapidly. The present changes are nothing compared with the changes that occurred between 1950 and 1970. That period saw the following massive advances:
. Introduction of antibiotics, which emptied the sanatoria;
. Better anaesthesia so increasingly complex surgery could be performed;
. The introduction of joint surgery;
. The arrival of effective psycho-active drugs that emptied the large mental hospitals, and so on.
In contrast, the only quantitatively significant medical advances made in the past 15 years have been:
. Discovery of Helicobacter pylori;
. Improvement in coronary care;
. Laparascopic surgery.
There is no evidence of widespread professional incompetence - the Society of Clinical Psychiatrists has been tracking this for nearly 17 years.
Despite hundreds of doctors being suspended, the number of those found to be incompetent was less than three a year in a workforce of many thousands. And the burden of proof was the lowly balance of probabilities.
Dame Janet also recommended that the GMC should be appointed by government. In fact, nearly half the GMC is already appointed by government via the recommendations of the Privy Council.
These lay persons are without proper medical or legal training but they take part and sometimes form the majority in all the GMC's
judicial panels. Magistrates get better training than they do.
Dame Janet also appears to think the GMC is too clubby. In reality, the GMC's performance reassessment tests are extremely draconian and insensitive. Doctors can be ordered to handle, ungloved, tissues to which they are allergic or objects about which they have objections arising out of their personal beliefs. The standard demanded is higher than the relevant college pass.
When piloted among doctors near completion of their training, all of whom had passed their respective college exams, 20 per cent of these doctors failed.
More serious is the recent Appeal Court decision that the civil rights of the individual are secondary to protecting the public. This has been the cry of every tin pot dictator since time immemorial.
The 'logic' goes like this: If a doctor is acquitted of wrongdoing and the politically appointed bureaucrats dislike the decision, even though they were not at the trial to assess the witnesses and evidence, then the doctor should be tried again, and presumably again and again until a verdict is reached which will satisfy their political masters or the tabloids.
For many years the House of Lords Judiciary has ruled that an erasure decision by the relevant health council and then a subsequent trial does not constitute double jeopardy as the council is here to protect the public, not award punishment.
Penal procedures
Recent law has changed that. The directive to the Council for Healthcare Regulatory Excellence (CHRE) to intervene if it thinks the health council is too lenient means that in law it is recognised that the health council's processes are penal procedures. The Appeal Court recognised this, but said that protection of the public puts double jeopardy into second place. The tin pots rattle again.
Double jeopardy hqs been illegal since Magna Carta days (Article 61, the decisions of those making the judgement are binding). The United Nations issued the Universal Declaration of Human Rights in a bid to protect the individual against oppression by the state.
Article 5 specifically forbids degrading treatment and repeated trials are certainly degrading.
Article 12 forbids an attack on the doctor's honour, which quite clearly happens if there is a retrial following acquittal. Crucially, any retrial ordered by the State shatters the concept of a presumption of innocence (Article 11).
The European Convention of Human Rights is specific about double jeopardy. Protocol 7 Article 4 states: 'No one shall be liable to be tried or punished again in
criminal proceedings under the jurisdiction of the same state for which he has been finally acquitted or
convicted in accordance with the law and penal procedure of that state.'
Case law from the European Court of Human, Rights in Strasbourg has upheld this article. European law is superior to domestic law and it is surprising, therefore, that the Appeal Court made a ruling that is so blatantly wrong in law.
It is also not the function of the courts to make new law. That is the function of Parliament, but Parliament has not made new laws about double jeopardy when someone has been acquitted of an offence.
Now any doctor acquitted of manslaughter can be retried for the same alleged offence. How soon will this apply to all citizens?
Another instance of suborning the law is trying someone, for example, expert witnesses, for evidence given under oath in a court of law, because the evidence given was deemed unpalatable.
Such evidence is by law supposed to be absolutely
privileged. The unlawfulness of this has been worsened by the decision to refer a case to the courts on the grounds
that the GMC's punishment was too lenient.
But the clearest evidence of deliberate oppression lies in the CHRE's remit. It may not intervene if it believes the GMC has been too harsh.
That is not even-handed, nor was it intended to be so. Furthermore, the activities of the CHRE have been most concentrated on a minority of health service workers namely, doctors.
One hopes the BMA, perhaps conjointly with the GMC and the human rights organisation]ustice, will mount a vigorous campaign in the House of Lords and perhaps back a doctor if there is an appeal to the court in Strasbourg. But I won't hold my breath.
Dr Tomlin is secretary of the Society of Clinical Psychiatrists' suspensions study group
See also Leave Dame Janet alone, Dr Anton Joseph's vigorous riposte to some of Dr Tomlin's contentions, in Hospital Doctor 24 March 2005; Letters p.11 (Editor)
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