There will be blood

In February this year a top doctor, Nigel Sacks, was permitted by the General Medical Council to step down and avoid a ‘fitness to practise’ hearing. In October, Harley Street surgeon Owen Jeremy Gilmore was allowed to do the same. In both cases, the justification was ill health – although Gilmore was working up until he made the application for voluntary erasure, and Sacks continues to practise in Australia. At both fitness to practise hearings, Aviva and AXA doctors were due to present evidence gathered during joint investigations.

This voluntary erasure process effectively offers doctors an escape route. It means that not only are insurers’ efforts to investigate the worst cases of fraud wasted, but more seriously, patients who were treated by these doctors will never find out the truth about the care they received, and they are denied recompense if fault is found. Despite a concerted joint effort to root out fraud, insurers are frustrated that the loophole allows doctors facing serious charges to simply remove themselves from the medical register and avoid public scrutiny.

Medical insurers are now demanding talks with the GMC over what they claim is its failure to regulate doctors effectively. The Health Insurance Counter Fraud Group (HICFG), which represents 11 health insurers and 12 cash plan providers, has written to the GMC requesting an urgent meeting.

“We’re very unhappy with the way that it has handled these cases,” says the HICFG’s chair, Dr Simon Peck. “What concerns us is that these were serious charges that have a public health interest and they have effectively been swept under the carpet. How can it be an effective regulator for the medical profession if it has a policy where people can apply to have their names taken off the register so that the charges will never be heard?”

Peck, whose day job is head of investigations and medical advice at AXA PPP, stresses that only a minority of doctors are involved in insurance fraud. But the losses are not insignificant. The HICFG estimates that fraud by practitioners, policyholders and brokers accounts for 5% of claims payments, which is broadly in line with other European countries. In 2009, when insurers paid out £3.2bn, this equated to £160m in the pockets of fraudsters.

Dishonest healthcare providers use a number of tactics to boost payments from insurers. They can abuse the structured coding system by charging for a treatment that is more complicated and expensive than the one they have given. Charging twice for the same service is another trick, using clinical jargon to hide duplication. Then there’s collusion with patients to misrepresent cosmetic or fertility treatments as necessary reconstructive or gynaecological work. This is on top of all the usual scams familiar to insurers in every sector – extra services added on to the bill, forged documents and incorrect information given when a policy is taken out.

Waiting game

Only in the most serious cases do insurers turn to the GMC. Peck says it is not unusual to wait a year or more for the GMC to investigate complaints against doctors. The investigation into Gilmore’s billing was first referred in 2007, but it took three years to schedule the case.

“The GMC’s processes are very time-consuming. We only take cases there if we think it is in the public interest or serious enough to warrant it,” Peck says. “We investigate a very large number of cases and we recover money all the time. The vast majority we settle ourselves by negotiation. If providers agree to give back the money and to bill properly in future, we will accept that.”

In the case of Gilmore, who worked at the London Breast Clinic, the allegations were that he had removed breast tissue, which was not clinically indicated or in the patients’ best interests, that he did not obtain appropriate patient consent, that he failed to arrange adequate discussions of patients’ diagnosis and treatment or maintain full medical records, and that he incorrectly coded invoices sent to insurance companies. Sacks was to have been charged with 19 counts of fraud and destroying accounting records relating to alleged false claims.

Voluntary erasure is most commonly used when doctors have reached the end of their career or are no longer practising. But for doctors who are the subject of a fitness to practise investigation, it also offers a way out.

The GMC’s primary role is to protect patients from doctors who are not fit to practise, something that allowing voluntary erasure achieves immediately. But the GMC’s own guidance on voluntary erasure applications in fitness to practise investigations emphasises that it is in the public interest that cases are aired before a panel where there are “serious allegations, which have a realistic prospect of establishing impaired fitness to practise”.

Where there is a realistic chance of allegations being proven, voluntary erasure is only permitted in “exceptional circumstances”, where independent medical evidence shows that the doctor is “seriously ill and would be unfit to defend himself before a public hearing”.

Doctors may submit an application for voluntary erasure at any time during a fitness to practise investigation. Gilmore chose to submit his days before the hearing, even though it had been scheduled for a year.

Gilmore’s hearing was scheduled to last for two and half months before a panel of five people.

But as the panel hearing had not yet begun, the application for voluntary erasure would have been decided by just one lay person and one medical case examiner. Any information about a doctor’s health is confidential, so the basis for their decision will never be revealed.

Where a case hinges on a medical report, there is an obvious danger that doctors have both the contacts and the medical knowledge to secure false evidence. When asked by Insurance Times how many independent medical reports it had sought in the case of Gilmore and from which cities, the GMC said it could not disclose information on individual cases.

Aviva UK health customer director Simon Arnold says: “We are disappointed that the GMC allows consultants involved in hearings relating to fraudulent activity, including serious clinical irregularities, to elect for voluntary erasure from the register, meaning that the disciplinary hearing in a number of these cases could not proceed and compensation could not be sought by the patients affected. We are determined that resources intended to provide the best possible healthcare to our customers should not be lost to fraud and error by a minority of healthcare providers and feel that the current situation needs to be reviewed.”

A GMC spokesman said it would meet the HICFG “as soon as possible”. Standards and fitness to practise director Paul Philip says: “Each application for voluntary erasure is considered on its merits and in the full knowledge of any outstanding fitness to practise concerns – an application can be turned down and outstanding issues dealt with at a public hearing. Our primary role is to ensure that those doctors on the medical register are fit to practise. However, in dealing with concerns our process must be fair to the doctor concerned. An important issue to consider when looking at applications for voluntary erasure is whether the doctor is able to have a fair hearing.”

Looking after its own

This is not the first time the GMC’s ability to regulate the medical profession has been called into question. It was heavily criticised for “looking after its own” after GP Harold Shipman was able to murder at least 215 of his elderly patients. In 2004, an inquiry chaired by Dame Janet Smith recommended far-reaching changes to its structure, including that it should no longer be solely responsible for assessing doctors’ fitness to practise.

However, the new Office of the Health Professions Adjudicator, which was supposed to provide independent investigation of doctors from April 2011, has been scrapped as part of the new government’s review of quangos. The GMC is overseen by the Council for Healthcare Regulatory Excellence, which the government is keeping under ongoing review.

Peck believes that something has to change.

“The GMC needs to ensure that the voluntary erasure process is not used to prevent cases being heard that ought to be heard,” he says. “Otherwise, how can people have any faith in the regulator?

It might lead to the public having no faith in the medical profession, if it’s not being regulated. Doctors are held in very high esteem, but there is a price that comes with that.” IT