What is fitness to practise?
The GMC says;
“To practise safely, doctors must be competent in what they do. They must establish and maintain effective relationships with patients, respect patients’ autonomy and act responsibly and appropriately if they or a colleague fall ill and their performance suffers.
“A doctor whose conduct has shown that they cannot justify the trust placed in them should not continue in unrestricted practice while that remains the case.”
What sort of allegations will the GMC investigate?
The GMC will open an investigation if they believe a concern about a doctor, if found proven, mean they would need to restrict a doctor’s practice. The GMC will usually investigation complaints relating to:
- poor performance
- a criminal conviction or caution
- physical or mental ill-health that may impact your ability to practise medicine
- a determination by another regulatory body
- insufficient knowledge of English.
What is the GMC's five-year rule?
Under what has become known as the “five-year rule”, no allegation against a doctor should proceed further if more than five-years have elapsed since the actual date upon which the most recent events giving rise to the allegation took place.
Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 state:
“No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest for it to proceed.”
What should I do if I have been referred to the GMC?
You should seek specialist legal advice at the earlies opportunity.
The trauma experienced by a doctor facing a full GMC investigation cannot be overstated – and the phrase ‘second victim’ is very apt here. A GMC investigation is a very dark cloud that looms large over the whole of your personal and professional life for a substantial period of time, even if your fitness to practise is eventually found not to be impaired and no sanctions are imposed.
Specialist fitness to practise defence barristers will be able to assess your case, give you clear and honest advice and can represent you during the various stages of a GMC investigation when you have the opportunity to submit information and respond to the GMC.
I have received a ‘Rule 4’ letter, what should I do?
The GMC’s provisional enquiry process exists to close cases early without a full investigation, under certain circumstances. As part of this process, a GMC case officer will send a doctor an initial Rule 4 letter which outlines the complaint or allegations. Whether to respond to a Rule 4 letter is at a doctor’s discretion and, whilst under certain circumstances, a response might not be necessary, a doctor should consider this carefully and seek advice.
In any event, following the receipt of a Rule 4 letter, a doctor should reflect on the circumstances that might have led to the complaint and take remedial steps. The insight gained and remedial steps taken might form part of a Rule 4 letter’s response, and doctors are advised to seek legal advice as soon as is reasonably possible.
I have received a Rule 7 Letter, what should I do?
Should the complaint progress past the provisional enquiry stage, GMC case examiners also have the discretion to close cases without the need for a full fitness to practise hearing. Case examiners will write to the doctor, outlining the evidence and allegations in a GMC Rule 7 letter. The doctor will be invited to respond within 28 days.
Whist the case examiner stage provides another opportunity for a doctor to provide evidence of insight and remediation, the timescales are short. As mentioned above, doctors are advised to seek legal advice as soon as is reasonably possible.
What is the role of the Case Examiner in a GMC Investigation?
At the conclusion of the initial investigation stage, if there is evidence that a doctor’s fitness to practise may be impaired, the case is referred to the case examiners for more in depth consideration. Case examiners are normally made up of both lay people and medical professionals in the area of regulation.
The case examiners are not asked to decide the facts of the case. They do not consider if the allegations made against a registrant are true or not true. The case examiners are required instead to consider if there is a real prospect that the allegation in the case could be proved and that, if proven, it would suggest that a doctor’s fitness to practise might be impaired.
Case examiners can make decisions, for example to close cases without further action, give advice, warnings, agree undertakings and referring some cases for a full hearing.
What is an Interim Orders Tribunal?
An Interim Orders Tribunal hearing looks at whether a doctor’s registration should be restricted while allegations is being investigated.
The GMC refers cases to a MPTS when doctors are facing allegations where it may be necessary for the doctor’s registration to be restricted whilst the allegations are resolved. These circumstances include the protection of members of the public, when a restriction would be in the public interest or in the interests of the doctor.
As well as the protecting the public, the ‘public interest’ includes the preservation of public trust in the profession and the maintenance of high standards, both of conduct and performance.
Will my case be referred to the Medical Practitioner’s Tribunal Service (MPTS)?
Not necessarily. A very small percentage of GMC investigations are referred to the MPTS. The GMC will refer cases to the MPTS where its investigation has concluded that the ‘real prospect’ test has been met.
The “realistic prospect” test will apply to both the factual allegations and the question whether, if established, the facts would demonstrate that the doctor’s fitness to practise is impaired to a degree justifying action on registration. It will reflect a genuine (not remote or fanciful) possibility. The real prospect test therefore involves two questions:
- decide whether there is a real prospect (that is, a real possibility) of the facts being proved by a fitness to practise committee; and
- deciding whether the facts, if they were proved, could show that the professional’s fitness to practise is currently impaired.
Does legal advice and representation really matter?
Yes. Numerous pieces of research has shown that doctor’s with legal representation have much better outcomes compared to doctors who go it alone.
A 2019 study peer-reviewed study published in the journal BMC Medicine found that doctors who lacked legal representation tended to receive more serious outcomes. The study results showed clearly that both “non-attendance and lack of legal representation” were consistently related to more serious outcomes.”
A similar 2015 study revealed that – of the two outcomes, suspension or erasure – doctors with legal representation at hearings were significantly more likely to merely be suspended (72%), rather than struck off (28%). In contrast, 69% of self-represented doctors were struck off.
More recently, research commissioned by the General Dental Council concluded that health and care professionals facing fitness to practise proceedings face adverse outcomes if they do not have legal representation.
What is insight and remediation and why do these matter?
When things go wrong at work, doctors are often asked to consider not only what went wrong, but how and why things went wrong and what they can do to take future preventative measures. Clinically, this often happens as the result on an audit or if a serious incident occurs as part of an SI review or Root Cause Analysis exercise.
It is a well-established fact that simply saying sorry is not enough. Insight and remediation must be genuine and demonstrable.
Kings View Chambers have a proven track record of success, acting for a range of health and care professionals facing fitness to practise issues. You can read more about our case success, our excellent reviews and contact us for a free, no obligation case assessment.
Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.