Doctors should carefully consider actual or potential conflicts of interest and take steps to mitigate risks to patient care and reputational damage to public trust.
Zuber Bux v The General Medical Council 2021
This case involved a doctor, Dr Zuber Bux, who was involved with a medico-legal scheme deemed to have all the “hallmarks of a corrupt practice”.
Summarising the circumstances that lead to Dr Bux’s erasure, he accepted instructions (through an agent, Medico Legal and Litigation Services Ltd (“MLLS”)) to prepare medico-legal reports in respect of holiday sickness claims, from a firm of solicitors (AMS Solicitors Limited (“AMS”)), in which his wife, Mrs Sehana Bux, was a salaried partner.
The medico-legal reports written by Dr Bux, were on a “boilerplate basis…superficial, unanalytical, devoid of any differential diagnoses, and were invariably supportive of the claim.”
The MPTS made findings of fact that Dr Bux had acted in a state of conflict of interest, dishonestly and for financial gain and directed that he be erased from the Medical Register.
Whilst the circumstances in this case are extreme and less likely to manifest in the same way in general medical practice, the interest lies in Mostyn J’s clarification of the two types of conflict of interest, i.e. “not only when a personal influence actually influences” judgement but also when it “is capable of influencing” judgement.
The first type “where done consciously involves considerable moral turpitude” whereas the second type involves no wrongdoing but must be declared and failure to do so “is likely to have very serious consequences”.
Types of conflict of interest
Managing Conflicts of Interest in clinical commissioning groups, RCGP Centre for Commissioning identifies the following types of conflicts of interest:
- Direct financial interest – a clear conflict of interest that arise when an individual involved in taking or influencing the decisions of an organisation could receive a direct financial benefit as a result of the decisions being taken.
- Indirect financial interest – arises when a close relative of a director or other key person benefits from a decision of the organisation.
- Non-financial or personal interests – where doctors receive no financial benefit, but are influenced by external factors such as gaining some other intangible benefits.
- Conflicts of loyalty – Doctors may have competing loyalties between the organisation to which they owe a primary duty and some other person or entity.
- Conflicts in professional duties and responsibilities – Clinical commissioners may feel that their responsibilities as commissioners for prioritisation and resource management at a population level could conflict with their professional duty to advocate for and protect the interests of individual registered patients.
This is not an exhaustive list but serves to identify the different conflicts of interest doctors might face.
The GMC’s Good medical practice states that as a doctor:
77. You must be honest in financial and commercial dealings with patients, employers, insurers and other organisations or individuals.
78. You must not allow any interests you have to affect the way you prescribe for, treat, refer or commission services for patients.
79. If you are faced with a conflict of interest, you must be open about the conflict, declaring your interest formally, and you should be prepared to exclude yourself from decision making.
80. You must not ask for or accept – from patients, colleagues or others – any inducement, gift or hospitality that may affect or be seen to affect the way you prescribe for, treat or refer patients or commission services for patients. You must not offer these inducements.
Summarising the GMC’s advice, doctors:
- Must tell patients about any financial arrangements associated with their care;
- Must not exploit patients’ vulnerability or lack of medical knowledge when charging fees;
- Must not encourage patients to give, lend or bequeath money or gifts that will directly or indirectly benefit them;
- May accept unsolicited gifts but this must not affect, or appear to affect, the way you prescribe for, advise, treat, refer, or commission services for patients.
Please refer to the full guidance for a more comprehensive explanation.
Conflicts of interest and fitness to practise
The GMC’s guidance warns that doctors “must be prepared to explain and justify … decisions and actions.” It goes on to say however that “Only serious or persistent failure to follow our guidance that poses a risk to patient safety or public trust in doctors will put your registration at risk.”
Sometimes though, conflicts of interest are unavoidable for doctors.
The important consideration for doctors facing circumstances where conflicts of interest appear to be unavoidable is what steps they have been taken to mitigate the risks to patient care and reputational damage to public trust in doctors.
The GMC recommends the following for declaring and managing a conflict of interest:
- use professional judgement to identify when conflicts of interest arise
- avoid conflicts of interest wherever possible
- declare any conflict to anyone affected, formally and as early as possible, in line with the policies of your employer or the organisation contracting your services
- get advice about the implications of any potential conflict of interest make sure that the conflict does not affect decisions about patient care.
The default position held by the GMC is that if a doctor is in any doubt about whether there is a conflict of interest, they should act as though there is.
Doctors might also be interested to refer to the “Joint statement from the Chief Executives of statutory regulators of health and care professionals” co-signed by the GMC.
The important point raised by Bux v GMC is that doctors must take great care to identify conflicts of interest when they arise and declare them whether they are actual or potential.
Failure to do so could lead to a finding of impaired fitness on the grounds of, for example, dishonest conduct and therefore professional misconduct.
Seek specialist legal advice
The GMC’s daunting and legalistic disciplinary processes prioritise patient safety and public confidence over protecting doctor’s interests. The GMC will always be represented by a specialist barrister who will make the case against you. And any legal advice and representation provided through your employer may have a conflict of interest.
If your career and reputation are on the line you should at the very least discuss your case with a specialist medical regulatory legal expert – the earlier the better.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.