Professional difficulty
Difficulties arise for all doctors throughout their career; most are minor. Only few
are taken further, leading to referral to the GMC. For most, ‘GMC chat’ is restricted
to coffee room moans about the annual retention fee. For a small percentage,
things are infinitely more involved and stressful. For the past eight years, I have
worked as a tribunal member for the Medical Practitioners Tribunal Service
(MPTS), the adjudication arm of the regulator. What follows is an explanation of
process and underpinning regulatory mechanics, in the hope that it helps those
facing this prospect.
A GMC referral
Some complaints to the GMC are misdirected, misguided
or vexatious. Most are dealt with by providing advice to the
complainant and closed without further action. However, those
raising questions about fitness to practise or which risk the
reputation of the profession are taken further.
Initial contact with the doctor is made to gather information
and decide whether an investigation is needed. (S)he is asked
to provide a brief summary and information about employers.
The Responsible Officer (RO) will be contacted and asked to
provide information which might orient an investigation. Where
an employer has sufficient concerns to make a GMC referral, this
is done by consulting a GMC Employment Liaison Officer who
assists the Trust in making decisions about referral.
Reasons for referral
There are six principal domains under which a fitness to practise
referral is considered:
- Insufficient knowledge of English
- Ill health
- Criminal conviction or caution
- Determination by another regulatory body
- Misconduct
- Poor performance
Medicine is a Notifiable Occupation. The police inform the
GMC when a doctor has been arrested, charged or convicted.
The GMC considers the information, potentially referring it to
an Interim Orders Tribunal (IOT). The IOT is a ‘risk assessment’
panel, making no definitive determination about the facts, nor
judgement. For conviction, the MPTS will convene a tribunal. The
criminal case cannot be ‘reopened’ by the doctor – it is taken as read. The question becomes - does this conviction affect the
doctor’s ability to practise? This includes an assessment relating
to deviation from Good Medical Practice (GMP) and whether the
reputation of the profession is at risk.
Misconduct is a term that covers behaviour both inside and outside work that might risk the public’s confidence in the profession.
Poor clinical performance is usually picked up by employer(s).
Where concerns are serious or persistent, the Trust is likely to
consult Practitioner Performance Advice, a body who provide
advice about a doctor’s practice and assist the Trust with an
investigation. Isolated errors are unlikely to raise questions about
professional performance. The GMC may direct a performance
assessment, which can inform the decision-making process.
Determinations from another regulator would include referrals
from overseas regulators. The coroner may write to the GMC
following an investigation where standards have fallen seriously
short, although this is rare for anaesthetists. Referral from
overseas regulators are considered on their own merits and do
not automatically lead to restriction. Where the GMC has made
a finding against a doctor, they will write to medical regulators
across the world to inform them of their decision.
Misconduct is a term that covers behaviour both inside and
outside work that might risk the public’s confidence in the
profession.
A Rule 7 letter
At the end of the investigation stage, the GMC passes the matter
on to case examiners who will decide what to do next. Options
are:
- Refer to the MPTS
- Agree undertakings
- Issue warnings
- Take no action
A 'Rule 7 letter’ is sent, detailing the allegations and the
evidence. The doctor must respond within 28 days. Consultation
with a defence organisation is strongly recommended.
The MPTS is the independent adjudicator making definitive
decisions on fitness to practise. The Tribunal comprises three
people: one medically qualified, one lay and one either. There is
always a lawyer to assist with legal and procedural fairness.
Tribunals hear evidence against the doctor’s fitness to practise.
The GMC instructs barristers to present their case. Doctors are
strongly encouraged to attend and seek representation so that
their case is put in the best light.
As a matter of natural justice, tribunals are heard in public unless
there are good reasons against (usually the doctor’s health).
The case is heard in three stages: firstly, the facts are decided,
with the standard of proof being the balance of probabilities;
secondly whether the facts impact on fitness to practise; and
finally whether to impose a sanction. The tribunal has a statutory
overarching objective, namely:
- To protect and promote the health, safety and wellbeing of
the public
- To promote and maintain public confidence in the medical
profession
- To promote and uphold proper professional standards and
conduct for the members of the profession
Serious misconduct is that which is deplorable or represents
a serious departure from Good Medical Practice. Case law
guides the tribunal’s approach to issues of impairment, but it is a
matter of judgement in each case. If a doctor’s practice is found
unimpaired, the tribunal can issue a warning. When impaired,
the tribunal has the power to:
- Take no action
- Agree undertakings
- Impose conditions
- Suspend the doctor’s registration
- Erase from the medical register
The doctor cannot be erased for ill health or lack of knowledge
of English language. Further information is available in the MPTS
publication
Indicative Sanctions Guidance.
Regulators and the courts go to lengths to state that a sanction
is not punitive. This stems from Bolton versus the Law Society
(1994), in which the Judge stated that the reputation of the
profession is more important than the fortunes of any individual
member. The sanction must satisfy the overarching objective.
I am sure that this offers little comfort to anyone finding
themselves with a sanction, but this is well established case law.
An appealing prospect
Where a doctor senses unfairness, an appeal can be made to
the High Court. Judges respect professional tribunals; it is rare
for them to reverse a decision as they did not hear the original
evidence and are unlikely to be versed in the specifics of the
profession. They are more likely to dismiss the appeal or remit it
to another panel for reconsideration.
The GMC was recently given the right to appeal MPTS decisions
if it thinks the decision was wrong. In the case of Doctor Bawa-Garba, the GMC successfully appealed against a suspension of
12 months, and this was substituted with erasure. The doctor
then appealed
this decision in the Court of Appeal, who found
in favour of the doctor, overturning the erasure and restoring
temporary suspension.
Infamy, infamy, they’ve all got it in for me
Where an appeal is heard and judgement determined, the
doctor earns a sense of legal immortality, since it is legal
practice to refer to cases by the names of the litigant. Mrs Gillick
is now famously associated with ‘competence’, when it comes
to a minor’s ability to consent without their parents’ knowledge.
Mrs Gillick now gets a mention whenever issues of consent
or contraception arise in treating young people. Doctors who
appeal decisions of professional disciplinary tribunals may find
their names oft-quoted when it comes to regulatory decision-making.
The end is insight
Impairment and sanction stages involve assessing insight,
remediation and remedy. Acknowledging mistakes at an early
stage, apologising and taking steps to put things right are all
vital steps in demonstrating insight.
In the time I have been involved with the MPTS, I have observed
all aspects to be conducted with scrupulous fairness. The losing
party would not necessarily feel the decision to be fair, but
my observation is that is reached in a fair way. There are three
pieces of advice I would offer to anyone facing trouble with
their regulator: firstly don’t ignore it; secondly get help – contact
your defence organisation at the earliest opportunity; and finally
go represented – advocates are paid to be persuasive and are
highly skilled at doing so for both sides of the argument.
Matthew O’Meara
Consultant in Anaesthesia
University Hospital of North Midlands
Fitness to Practise Tribunal Member Medical Practitioners
Tribunal Service (MPTS)
Twitter: @drmattomeara