GMC Non-compliance Hearings – 10 Things doctors need to know

Non-compliance Hearings

The GMC may refer a doctor to a Medical Practitioners Tribunal (‘MPT’) where it is of the opinion that a doctor has failed to submit to an assessment of their performance, health or knowledge of English or failed to comply with requirements imposed by an assessment.

The non-compliance hearing will include the following main elements:

• presentation of the GMC’s case
• presentation of the doctor’s case
• the tribunal’s findings on the issue of non-compliance

If the tribunal makes a finding of non-compliance, it can impose restrictions on the doctor’s practice by directing conditions on their registration for up to three years or by suspending them for a period of up to 12 months.

10 things every doctor needs to know

1. The tribunal will not consider whether the doctor’s fitness to practise is impaired when determining the issue of non-compliance.

Both the GMC and/or one of its fitness to practise committees can direct a doctor to a non-compliance hearing.  GMC guidance makes clear that it is not the remit of a non-compliance tribunal to make a determination on the doctor’s fitness to practise.  Therefore, different assessment criteria or test will apply.

2. The non-compliance test

When considering the issue of a doctor’s non-compliance, the  tribunal will ask the following questions:

1. Has the doctor failed to comply with the tribunal’s direction[1]?
2. If so, does the doctor’s failure to comply create a risk to public protection?
3. If so, is there a good reason for the doctor’s failure to comply?3.

3. A “clear” risk to public protection

If the non-compliance tribunal are satisfied that the doctor has failed to comply with a direction, they should consider whether the doctor’s failure to comply creates a risk to public protection.

GMC guidance defines this as:

“There is a clear risk to public protection where a concern about a doctor’s fitness to practise has been raised but cannot be investigated other than by means of an assessment, or by requiring a doctor to provide information, and the doctor does not comply.”

If there are other proportionate means by which the tribunal can reach a decision about whether the doctor is fit to practise, this may indicate that the doctor’s failure to comply does not create a risk to public protection.

4. Good reason(s) for the doctor’s failure to comply

When considering the issue of whether there is a good reason for a doctor’s failure to comply with a GMC direction, the non-compliance tribunal will need to make a judgement based on the individual circumstances of the case.

GMC guidance suggests “good reasons” for failing to comply with a GMC direction could include (but not limited to):

• adverse physical or mental health prevented them from complying
• demonstrating a doctor did not receive the GMC’s direction or request
• demonstrating a doctor is not, or could not reasonably be expected to be, in possession of the information requested
• demonstrating a doctor’s failure to comply does not create a risk to public protection because the GMC can still investigate the concern

5. The power of indefinite suspension

If a non-compliance tribunal makes a finding of non-compliance, it can impose restrictions on the doctor’s practice by directing conditions on their registration for up to three years or by suspending them for a period of up to 12 months.

However, after a doctor has been suspended under a non-compliance direction for two consecutive years, and there is evidence of continued non-compliance, the tribunal has the power to suspend the doctor indefinitely.

6. A doctor cannot be erased for non-compliance

7. Voluntary erasure

Stated intentions by a doctor to no longer practise in the UK, relinquish their licence to practise, or submit an application to have their name removed from the register, are also not considered sufficient to amount to good reasons for failing to comply.

8. GMC Performance Assessments – designed to fail doctors?

GMC Performance Assessments have been described as “designed to fail doctors.”

According to GMC statistics, 60% of doctors subject to a GMC Performance Assessment are judged to not be fit to practise.  A further 17% are judged to have limited fitness to practise, leaving only 23% of doctors who are deemed fit to practise following a Performance Assessment.

From years of experience of defending doctors facing GMC fitness to practise investigations and hearings, we know that doctors often feel that their assessments were unfairly conducted, based on wrong/inadequate assessment criteria, not based on “real life” and/or have inadequate focus.

9. You have a right of appal

We understand the impact of restrictions or suspensions on a doctor’s career, reputation and ability to remediate.

A doctor has a right of appeal in relation to a finding of non-compliance by an MPT to the High Court and must do so within 28 days or be out of time.

10. Legal representation

When considering the need for legal advice and representation, you need to carefully consider the following:

Not having legal representation will not amount to a good reason for a doctor failing to comply with a GMC direction or request to provide information:

1. You have a right of appeal in relation to a finding of non-compliance by a tribunal
2. Non-compliance hearings are part of GMC investigations that are long & legalistic
3. We have previously written about the dangers of doctors going it alone before the GMC
4. Research has shown that both “non-attendance and lack of legal representation” were consistently related to more serious outcomes” for doctors

“The GMC’s case against you will be made by a specialist barrister – so it is only appropriate to instruct a specialist yourself.”

Kings View are public access barristers, meaning that you can instruct us directly without having the additional expense of hiring a solicitor first (so we are generally at least one third cheaper).

At Kings View, we have years of experience defending every level of doctor.

You can speak to us today for a free, no obligation assessment of your case.

[1] There does not need to be culpability on a doctor’s part for the tribunal to conclude there is evidence that the doctor has ‘failed to comply.’ At this stage, the tribunal is simply considering whether there is evidence to show, as a matter of fact, the doctor has not complied with their direction.