What is a fitness to practise investigation?
The purpose and obligations of the GMC are set out in the Medical Act 1983 (as amended). In order to satisfy its ‘over-arching objective’ of protecting the public, the GMC is required to pursue the following objectives:
- To protect, promote and maintain the health, safety and well-being of the public,
- To promote and maintain public confidence in the medical profession, and
- To promote and maintain proper professional standards and conduct for members of the that profession.
The GMC is empowered to investigate concerns about the fitness to practise of any GMC registered medical practitioner (‘doctor’ for ease of reference).
If required, the GMC can refer the doctor to the Medical Practitioners Tribunal Service (MPTS) for a hearing before a Medical Practitioners Tribunal (MPT), where their fitness to practise is alleged to be impaired on one or more of the grounds specified in the Medical Act 1983 (as amended).
How will you know if there is a GMC investigation and what should you do next?
An investigation into a doctor’s fitness to practise may arise in several ways; an obvious route would be through a complaint to the GMC. The GMC can however, also begin an investigation of its own volition where, for instance, there was a potentially negative story about a doctor in the media.
The GMC will write to a doctor if it is carrying out an investigation into their fitness to practise. This may be the first time that the doctor becomes aware of the concern; a nasty bolt from the blue.
When receiving such a letter from the GMC the temptation will be to respond as quickly and in as much detail as possible, in the hope that this will lead to a swift conclusion to the matter.
This temptation may become especially overwhelming where the concern appears to be an act of spite or is simply unfounded. Please do not give in to this temptation. Before responding, it is vital that you first obtain proper legal advice from your medical defence organisation.
Any response you provide at this time will form the foundation of your subsequent defence; it should therefore be prepared without you feeling rushed and based on the best possible advice. Our multi-disciplinary team, which includes doctors and in-house lawyers specialising in this field will be on-hand to provide members with all the support needed at this time.
What is the process?
A fitness-to-practise investigation can often take several months if not longer to conclude. Depending on the nature of the concerns, the investigation might include the GMC obtaining witness statements and/or expert reports. The GMC will also write to the doctor’s current and previous employers to notify them of the investigation and invite them to share any concerns that they may have about the doctor.
At the end of this initial investigation, the GMC could decide to close the case if satisfied that there were no fitness-to-practise concerns. In all other cases, the GMC would write to the doctor setting out the allegation including any evidence that had been obtained. The doctor would be given 28 days to provide a written response, which would then be considered by two of the GMC’s case examiners; one medical and one layperson.
To determine the outcome of the investigation at this stage, the case examiners would need to apply the ‘real (or realistic) prospect test’: a consideration of whether the GMC can prove the alleged facts on the balance of probabilities; and whether those facts which could be proved would result in the doctor’s fitness to practise being found to be impaired, to a degree that would justify some action being taken against their registration.
Depending on their findings, the case examiners could decide to close the case with no further action or with a letter of advice; offer a warning; invite the doctor to comply with specific undertakings; or refer the case for a full fitness-to-practise hearing before the MPT.
At any stage, the GMC’s registrar could also refer a doctor to the Interim Orders Tribunal (IOT). An IOT can impose interim restrictions on a doctor’s registration in the form of conditions or suspension, where it is satisfied that this is necessary to protect members of the public or that it is otherwise in the public interest, or even in the doctor’s own interest for such an order to be imposed.
MPT hearings: an overview
The following is not all-encompassing but is intended to capture the key features of a typical hearing.
A number of procedural steps need to take place before the date of the hearing, including the need for both the GMC and the doctor to mutually disclose any evidence that they intend to rely on. It can therefore be many months before the actual hearing takes place.
The hearing, which the doctor will be expected to attend, takes place at the MPTS hearing venue in Manchester. The MPT that will hear the case is usually comprised of a panel of three people; including at least one medical member, one lay member and a legally qualified chair. MPT hearings are generally open to the public. The main exception to this is where the hearing relates to the health of the doctor.
Broadly speaking, there are up to a possible of five stages to the hearing:
- Preliminary legal arguments, if any
- Findings on the alleged facts
- Determination on impairment, where one or more of the alleged facts were proved. A warning could be imposed if no impairment was found.
- Determination on sanction, if the doctor’s fitness to practise is found to be impaired
- Determination on whether the sanction should take effect immediately
Both parties can make legal submissions during each stage of the hearing. In addition, both parties can produce evidence and cross-examine the other’s witnesses, should any be called, at stages 2, 3 and 4. The MPT will, after deliberating in the absence of the parties, announce its decision at the end of each stage and provide written reasons for that decision.
All of the above inevitably means that hearings can last several days if not weeks, including lots of time spent waiting for the MPT to reach a decision. Consequently, the whole experience of having to attend a hearing is hugely stressful irrespective of the outcome, and especially for those doctors who are not represented by lawyers experienced in defending these cases. Statistics from the GMC suggest that an unrepresented doctor is more likely to receive an outcome of suspension or erasure at an MPT hearing than a doctor who is legally represented. [i]
Should a hearing proceed to the sanction stage then the MPT can, in certain circumstances, accept undertakings agreed between the doctor and the GMC. In all other cases, the MPT can impose one of the following, starting with the least serious: no order; conditions; suspension; or, in the worst case, erasure from the register.
The MPT hearing may not however be the end of the matter.
The doctor has a right of appeal to the High Court (or the Court of Session for doctors in Scotland) where a sanction of conditions or worse is imposed.
As things stand, the GMC also has (and continues to exercise) a right of appeal where, for instance, it considers a decision made by the MPT does not adequately maintain public confidence in the medical profession.
The GMC’s right of appeal is in addition to the separate right of appeal held by the Professional Standards Authority, which can also challenge a decision of the MPT if considered to be unduly lenient i.e. a more serious sanction was required.
Whilst the information here is not exhaustive, it should be possible to identify the array of pitfalls that a doctor might face if they were ever to find themselves at the wrong end of a GMC investigation.
From my experience, which includes prosecuting for the GMC for four years and defending doctors at MPS for the past eight years, going through a GMC investigation can be an incredibly stressful and isolating experience for any doctor.
Fortunately, members of MPS do not need to go through such an ordeal alone. Should you ever find yourself in this awful predicament then please do contact us, as soon as possible. By working in collaboration; we can, and we will, help you achieve the best possible outcome with as little pain as possible.
Kashif Mahmood is lead legal advisor for Medical Protection