When is a doctor’s history relevant to a GMC fitness to practise investigation?

Under certain circumstances, the GMC can take into account a doctor’s history even where previous cases resulted in no regulatory action.

A doctor’s fitness to practise history

When the General Medical Council (GMC) refers to a doctor’s fitness to practise history, it does so in the context of previous allegations and cases.

In brief, every time the GMC receives an enquiry about a doctor, it is formally recorded and kept against the doctor’s record. Some enquiries are closed without being promoted for investigation.

In other cases, however, cases are closed with formal action will have one of the following outcomes:

• Erasure
• Suspension
• Conditions
• Finding of Impairment (no further action)
• Undertakings
• Warning

Other cases are investigated, and following investigation, are closed without any formal action.

When might a doctor’s fitness to practise history be taken into account?

GMC guidance states:

“A doctor’s fitness to practise history should be taken into account when it is relevant to the current decision and fair in the circumstances for that history to be considered.”

The guidance goes on to say that a doctor’s fitness to practise history should be taken into account where current allegations are similar in nature or raise similar concerns.  As referred to above, a doctor’s fitness to practise history relates to actions the GMC might have taken in the past and the outcomes of these cases.

More specially, a doctor’s fitness to practise history could be sufficient to give rise to an allegation of impaired fitness to practise if: 

• the previous allegation is similar to the current allegation and/or paints a pattern of concern that, in totality, indicates a pattern of persistence that could give rise to an allegation of impaired fitness to practise.
• the reason that the previous case was closed relates to seriousness rather than the credibility of the allegation. Where the previous matter was closed because there was insufficient evidence to support it, it would not be appropriate to take it into account.
• If, however, there was sufficient evidence to support the previous allegation, and it closed on the grounds that it was insufficiently serious in itself to meet the threshold, then as evidence of a pattern it may be relevant to the current allegation.
• Previous incidents attributable to single clinical incidents or concerns that were closed on the grounds it was an isolated incident (e.g. unlikely to recur). If doctor has a previous history that relates to clinical practice, it will not be appropriate to consider a new matter as a single clinical incident unless the previous matter was found not proved, was a significant time ago, or where the nature of the incidents are very specialised and completely unrelated.

Continued Below ↓

Evidence of Insight and Remediation

Evidence of insight and remediation carries substantial weight and treated as mitigation in GMC investigations or by a tribunal.  However, the value of insight and remediation is weakened where the previous history relates to allegations that are similar to a current allegation.  A previous history of similar allegations would indicate a pattern of persistence, and means that consideration must be given to the question of remediation and/or the doctor’s insight.  In other words, if the current allegation is similar to a doctor’s fitness to practise history, it might indicate that the doctor has not gained insight and remediated their previous wrong doing.

This is not to say that fresh evidence of insight and remediation will carry no value.  This again will depend on the individual circumstances of each case and based on a clear and robust legal strategy.

The importance of rebuttal and evidence

GMC investigations are complex, governed by statutory rules and procedures.  There is a growing body of evidence and data pointing to the fact that doctors without legal representation face worse outcomes than doctors with legal representation.  The importance of legal representation is particularly important for doctors who have been subject to previous GMC investigations or allegations.  For these doctors, a clear and robust defence strategy will be key to good outcomes.

The GMC’s case is likely to include evidence of a doctor’s fitness to practise history, which will be counted as an aggravating factor in the GMC decision-making process (or if a case is referred to a contested hearing).

In particularly complex cases, a defence strategy and evidence will take time to gather and put in place.  It is always advisable for doctors to seek legal advice and representation at the earliest opportunity – ideally when they are advised by the GMC of an open investigation.

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.