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    Monday, 14 August 2017 09:59
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    Monday, 14 August 2017 09:16
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law2December 10 2015

A doctor may find themselves the subject of an investigation at any time in their career, from medical students to trainee doctors, GPs or consultants.

Whether it’s an issue relating to their clinical practice or their private life, investigations can be brought about by allegations of misconduct or poor performance, criminal convictions or cautions, decisions passed by other professional bodies or health matters.

With the GMC’s guidelines shifting towards greater openness and honesty on the part of practitioners, the onus is on medical professionals to review the way they operate in order to protect their patients, their profession and themselves. It’s also vital that that individuals keep up-to-date with the big legal challenges facing their sector and know how best to navigate through the system should they find themselves on the receiving end.

New GMC guidelines – how things have changed?

The new GMC guidelines bring into focus the professional duty of candour that every healthcare professional should embrace.

What happens in a GMC fitness to practise investigation?

1) The GMC receives a complaint about a Doctor and carries out initial enquiries

2) Rule 4 Letter - The GMC writes to the Doctor. If the Doctor decides to respond they have 28 days to do so

3) The GMC conducts an investigation

4) Rule 7 Letter - The GMC writes to the Doctor about the draft allegations with any evidence. The Doctor is invited to respond in writing.

5) Consideration by Case Examiners - If the Case Examiners are satisfied that there is a realistic prospect of finding that a Doctor’s Fitness to Practise is impaired, then that have the follow options:
          1) Close investigation
          2) give a warning
          3) Refer to Fitness to Practise Panel

6) Interim Orders Panel (IOP) - If there is a public protection issue or for the best interests of the public or Doctor, you may be asked to appear at an IOP. The outcomes of an IOP are: 

          - No action
          - Interim conditions
          - Interim suspension

7) Fitness to Practise Panel
    a. Facts
          If the allegations are disputed the panel hear evidence and make factual findings.
    b. Impairment
          If allegations are proven, the panel will hear submissions and decide if the Doctor’s Fitness to Practise is impaired.
    c. Sanctions
          If Fitness to Practise is impaired:
              1. Take no action
              2. Accept undertakings offered by the Doctor provided the panel is satisfied that such undertakings protect patients and the wider public interest.
              3. Place conditions on the doctors registration.
              4. Suspend the Doctor's registration
              5. Erase the doctor's name from the medical register, which means that you can no longer practise.

GMC investigations in conjunction with criminal proceedings

If a doctor is charged and/or convicted of criminal wrongdoing by the courts, the General Medical Council (GMC) will usually launch its own fitness to practise investigation. In the majority of cases, the GMC will wait for the outcome of any criminal proceedings before embarking on its own hearing once all the facts are known, however an interim order hearing may be launched during court proceedings if the nature of the allegations demand it.

If a criminal case ends in acquittal or abandonment, the GMC may still investigate. In these circumstances the prospect of facing a fitness to practise investigation can feel unfair, especially when it’s based on the same facts deemed not to warrant prosecution in the courts.

The GMC has a responsibility to protect the public, so has a duty to consider whether an individual’s fitness to practice still meets the profession’s exacting standards or if it has been impaired as a result of allegations the criminal proceedings were based upon.

Fitness to practise hearings following a conviction/caution

In the event of a conviction, the GMC will take a certificate of conviction as proof that a crime was committed. The doctor will therefore not be able to go behind the conviction and attempt to evidence their innocence.

The GMC will take into account the following issues:

  • The facts from the criminal court
  • The judge’s sentencing remarks
  • The nature of the sentence handed down
  • The severity of the offence
  • The degree of remorse shown
  • The chances of repeat offending
  • The effect this case has on wider public perception of the profession

Any custodial sentence will be taken seriously by the GMC, however a smaller penalty will not automatically result in a lesser sanction. And while a conviction will not automatically lead to erasure, where the individual is ‘struck off’, this outcome will be considered as a starting point for offences that relate to dishonesty, violence or are of a sexual nature.

Fitness to practise appeals

When a practitioner is struck off the consequences can be severe, both in terms of their career and their private live. In this case, it may be possible for the individual to appeal against the GMC’s decision.

During an appeal hearing the Court has the power to:

  • Dismiss the appeal
  • Uphold the appeal and quash the original decision
  • Substitute the original decision appealed against with another decision
  • Return the case to the panel for disposal according to the Court’s decision.

The Court should uphold the following general principles which apply to all professional disciplinary committees appeals:

  1. The Court will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the profession expects of its members deserves respect;
  2. The Court will have regard to the fact that the tribunal has had the advantage of hearing the evidence from live witnesses;
  3. The Court should accordingly be slow to interfere with decisions on matters of fact taken by the first instance body;
  4. Findings of primary fact of the first instance body, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;
  5. Where what is concerned is a matter of judgement and evaluation of evidence which relates to areas outside the immediate focus of interest and professional experience of the body, the Court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be ‘wrong’ or procedurally unfair.

When a fitness to practise panel has decided on the facts and passed the appropriate sanction. The registrant may seek to appeal the sanction on the basis that it is disproportionately harsh.

Only the strongest of appeal cases will warrant interference from the High Court, because of the view held by the High Court that disciplinary committees are ‘the best possible people’ for passing judgement in cases of professional misconduct. So appeals, which can be expensive, carry the risk of the individual having to cover substantial court costs for both parties in the event that it is unsuccessful – making good legal advice in the first instance a must.

NHS Trust Investigations

A doctor may find themselves facing a Trust level investigation  or disciplinary hearing. These normally relate to allegations of misconduct or competence. The process and wider implications can be difficult to navigate or fully understand.

It’s essential when considering trust investigations what impact this may have on any subsequent GMC investigation, as many NHS Trusts will report misconduct to the GMC following their internal process.

Inquests

A doctor may face having to attend an inquest to give evidence relating to the cause of death. In most cases this will be straightforward, however there are situations when there may be allegations against a Trust and/or a doctor about the cause of death. The Trust’s lawyers will seek to protect the Trust and may have a conflict of interest that prevents them from also looking after an individual doctor. In that situation, a doctor will be better off having their own independent legal representation for an inquest.

Police investigations and criminal proceedings for doctors

Facing a criminal investigation is daunting for any professional person. There is a protocol of exchange of information between the police and the GMC, to ensure that information about allegations against a doctor is shared. Given the devastating impact even a simple caution can have for a doctor, it is essential to obtain specialist advice, not just from a duty criminal solicitor, but from a lawyer who understands both the criminal and regulatory impact for a doctor.

ARCP appeals

If a doctor doesn’t get the outcome they were hoping for in an ARCP review, there is a limited window of opportunity to lodge an appeal. Specialist legal advice at this stage can be beneficial to advise about the most appropriate grounds for an appeal.

Protecting yourself with practical steps

These tips can benefit everyone, from trainees to consultants.

Keep detailed patient records

As a starting point, be sure to record every choice made during consultations and the reasons why. It can be time consuming, but can help with difficult situations later on. Notes are vital should any questions arise further down the line, either from the patients themselves or from investigatory panels. Some scenarios will benefit from this action more than others, for example; when patients take some persuading about one particular course treatment.

“Sorry” shouldn’t be the hardest word

Mistakes happen, so when they do a swift, genuine apology can go a long way to appeasing a patient and reduce the risk that they’ll take their complaint further. Offer reassurances that it was a one-off mistake and give a full explanation of what went wrong. If changes in policy or procedure were required as a result, explain these in detail to show that lessons have been learned and reflected upon.

Deal with it quickly

Moving fast to handle a complaint is the best way to resolve the problem before costly legal proceedings get started. They’ve taken the time to make the complaint so don’t be dismissive. Instead, make it clear that you appreciate their complaint and that you share their serious concerns on the issue. Consider it an opportunity to improve how you do things in future.

 Written by Marie Dancer, Managing Partner at Richard Nelson LLP and Medic Assistance Scheme.

richardnelson

Links:

Richard Nelson - Legal Guide

Richard Nelson LLP

Medic Assistance Scheme

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