The GMC’s “Realistic Prospect Test” & why it matters

What is the Realistic Prospect Test?

The “realistic prospect” test will apply to both the factual allegations and the question whether, if established, the facts would demonstrate that the practitioner’s fitness to practise is impaired to a degree justifying action on registration. It will reflect a genuine (not remote or fanciful) possibility.

When is the Realistic Prospect Test Applied?

When a referral has been made to the General Medical Council (GMC), the initial stage of the process is referred to as the triage stage. In this stage, the GMC determines if the concern(s) raised point to the fact that a doctor’s fitness to practise may be currently impaired as a result of any one – or more – of these headings:

• misconduct;
• deficient professional performance;
• a criminal conviction or caution;
• adverse health that may affect the ability to practise safely;
• lacking the necessary English language knowledge and comprehension; and/or
• a determination by another health regulatory body.

If the referral is not closed during the triage stage, it moves to the provisional enquiry stage.  At this stage, the GMC are still gathering information to determine if a formal investigation should be opened.

At this stage, a doctor will have the opportunity to consider the allegations and provide a response.

Once the GMC has gathered all the relevant information, including the comments made by the doctor, it will decide if where to close the enquiry or open a formal investigation.

The formal investigation (Rule 4) gathers further information and may also involve an assessment of the doctor’s performance, health, or knowledge of the English language. The doctor will also be invited to provide further comments at this stage.

If the case is not closed under Rule 4, it enters, what is known as the Rule 7 stage where the GMC will set out the formal allegations and disclose the evidence it has gathered.  There will be a further opportunity for the to comment and respond.  The GMC’s evidence, including the doctor’s formal response, is put to two Case Examiners to decide the outcome of the investigation.

It is at this point where the Realistic Prospect Test is applied.  In other words, the Case Examiners will consider whether the evidence is sufficient to establish that the doctor’s fitness to practise is impaired to a degree justifying action. 

Insight, Remediation and Legal Advice

It is worth noting that a GMC investigation – depending on the complexity of the case – could take many months, if no more than a year, to conclude.

There is real value in doctors seeking legal advice and representation at the earliest opportunity.  Whilst there is a general duty on doctor’s to cooperate with the GMC, doctors must take care not to panic and make rash decisions and responses.  It is often better for doctors to wait for the GMC’s evidence before considering a formal response.

Fitness to practise defence barrister, and Kings View Chamber’s joint Head of Chambers, Catherine Stock notes: 

“The fundamental principle that the regulator brings the case against the registrant, and they must prove it. The regulator regularly pushes registrants to provide responses in the early stages at a point where they have no evidence and can then often use the registrant’s response against them later. Registrants can find themselves in a difficult position as they are also under a duty / obligation to engage with investigations. It is imperative for registrants to obtain proper legal advice from experts in this area early and as soon as a referral is made and received.”

Evidence of insight and remediation can be hugely beneficial for doctors when considering their formal response and evidence to the GMC.  However, insight and remediation must be genuine, well considered and clearly evidenced to be effective. 

We know that insight and remediation is often a long process.  This reiterates the importance of seeking legal advice and representation at the earliest opportunity.  Doing so will allow sufficient time for us to agree a clear and robust defence strategy with doctors, including the need and type of remediation required.

Things will go wrong, and we are here when you need us

Kings View has been advising and representing health care professionals for many years, and we know that despite their best efforts, some things do go wrong.  Through our experience, we know that the circumstances that lead to things going wrong are never straightforward.

It is a well-established fact that healthcare professionals who seek legal advice and representation at an early stage in any fitness to practise process, generally, receive better outcomes and lesser sanctions, if any.  We can advise on the right strategy to take and represent you before a fitness to practise hearing.

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).

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