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20 December 2018
The number of complaints reported to the GMC surged over recent years, but complaint numbers are now dropping back; complaints reduced by 13% between 2012 and 2017.
The great majority of complaints to the GMC are closed without action on the doctors' registration. However, a GMC investigation is a source of great anxiety to any doctor who is under scrutiny.
Here we give an overview of the GMC's fitness to practise (FTP) procedures.
An initial triage is carried out to consider whether a complaint or enquiry raises a question about a doctor's fitness to practise.
Those which do not relate to fitness to practise are closed immediately - for example, cases about late appointments or disagreements about content of medical reports.
Some complaints that do not raise serious concerns would not require a full investigation unless they formed part of a pattern of similar concerns. The GMC refers those complaints to the doctor's responsible officer (RO) or employer.
If you have any concerns about a complaint that has been passed to your responsible officer, you are very welcome to seek MDU advice.
Since 2014, the GMC has carried out provisional enquiries (PEs) at the triage stage in cases that meet certain criteria. In 2017, 40% of the cases not closed immediately or referred back to employers were subject to provisional enquiries. These enquiries can be undertaken quickly as the GMC needs only a few pieces of information to help it decide whether to close a complaint or open a full investigation.
Nearly 70% of such cases are closed without a full investigation.1
In 2017 most complaints to the GMC (around 65%) were made by members of the public. Complaints to the GMC are also made by employers, the police, doctors, other healthcare groups and organisations. The GMC also identifies potential concerns about doctors from other sources, such as the media. And doctors sometimes need to self-refer to the GMC.
The GMC does not usually investigate complaints relating to events that took place more than five years before the date of the complaint, unless it believes this would be in the public interest, in the exceptional circumstances of the case.
If a complaint is to be investigated, the GMC will write to the doctor with a copy of the complaint. At that stage, the doctor has an opportunity to respond but is not obliged to do so. There are pros and cons to responding, depending on the circumstances of each case.
If you have received a letter from the GMC about an investigation and provisional enquiry, please contact the MDU as soon as possible.
GMC investigators gather information about the case, such as medical records and statements, and may obtain an expert report.
The GMC may make any enquiries needed to investigate whether the doctor's fitness to practise is impaired. It also has the power to order an assessment of a doctor's performance, health or knowledge of English. A doctor who fails to comply may be referred to an FTP tribunal for non-compliance.
A team is selected from the panel of performance assessors to assess the standard of the doctor's professional performance. The assessment will normally include peer review - including a visit to the doctor's place of work and knowledge-based and practical assessments.
The doctor will have an opportunity to comment on information provided to the team by others and on the outcome of the assessment.
The assessment team will report on the standard of the doctor's performance.
The GMC may also invite the doctor to be examined by two medical examiners. Their reports on the doctor's physical or mental condition will also state whether they believe the doctor is fit to practise, either generally or on a limited basis, and make recommendations for the management of the case.
If concerns relate to the doctor's knowledge of the English language, the GMC may direct the doctor to undertake an assessment of their knowledge of English.
If, after initial investigation, the GMC believes there may be a case to answer, it will send the doctor a letter setting out the allegations it believes it needs to investigate further, asking the doctor to comment on them and to provide any additional information that may assist the GMC with the investigation. The doctor has only 28 days to respond to this letter.
If you have received a letter setting out allegations but have not yet contacted the MDU, it is vital that you do so as soon as possible to seek help with a response.
The GMC expects doctors to show insight into the gravity of what has happened and demonstrate they have taken action to remedy any deficiencies identified by the complaint. This is known as remediation and can have a positive influence on the outcome of the case. The GMC invites some doctors to attend a meeting with a case examiner and GMC lawyer, at which the doctor can be accompanied, to hear about the allegations and what sort of evidence the GMC might want to see in the doctor's response. The meeting is not mandatory. If you receive an invitation to such a meeting, please let us know immediately.
Whether or not there has been a meeting the case examiners will consider all the evidence, including the doctor's response, and will apply the 'realistic prospect' legal test. That means that only cases with a realistic prospect of establishing that the doctor's fitness to practise is sufficiently impaired to justify action on registration will be referred to an FTP tribunal hearing.
At the end of the investigation, the GMC case examiners may decide to conclude the case against the doctor with no further action or a letter of advice. Of investigations concluded in 2017, 52% were closed with no further action and 17% with a letter of advice.2
Other possible outcomes at the case examiner decision stage are:
In some cases where the case examiners believe the facts do amount to impaired fitness to practise but an FTP tribunal would not erase the doctor, the case examiners may also offer undertakings.
The GMC has power to issue warnings. It may do so where it decides that the allegations do not justify referral to an FTP tribunal, but there is evidence to suggest the doctor's behaviour or performance has fallen below acceptable standards and warrants formal censure.
The doctor will be asked to provide comments for the GMC to consider before it decides whether to issue a warning and on what terms. Where the doctor chooses not to comment or does not dispute the facts alleged, and is taken to have accepted the warning, two case examiners may agree a warning is appropriate.
The complaint will proceed to an oral hearing of the investigation committee where:
The investigation committee may decide:
In practice, oral hearings are rare. They are held in public unless there is an overriding public interest reason to hold them in private, for example if there are any health matters that must remain confidential. Warnings will be disclosed to the person or body who brought the allegation to the attention of the GMC, and to doctors' employers, or any person or body for whom they provide medical services.
Warnings will be published and disclosed to all enquirers for five years. After that time, the warnings will be removed from public view but will remain available to employers.
In exceptional circumstances, the GMC Registrar may decide that it is in the public interest to review a decision by the GMC to conclude a case. This happens rarely, and only when there is new information which casts a substantially different light on the allegation, or when an apparent error is discovered in the handling and/or consideration of an allegation which led the GMC to reach an inappropriate decision.
A case that raises serious concern about safety of patients or others can be referred to the interim orders tribunal (IOT) at any stage. The Medical Practitioners Tribunal Service (MPTS) is a separate body responsible for both IOT and FTP hearings.
The IOT may decide that a doctor should be suspended or that conditions should be imposed on a doctor's registration on an interim basis in order to protect patients, or in the interests of the public or the doctor, while an FTP investigation is underway. IOT hearings will generally be held in private.
There may be very short notice of a decision to refer a case to an IOT, so it is vital that you tell the MDU immediately if you are being referred there.
Suspensions or conditions imposed by the IOT are reviewed every six months and will usually remain in place for up to 18 months if takes that long for the GMC to undertake a full investigation into the allegations. They may be extended by a High Court order.
FTP tribunals are held by the Medical Practitioners Tribunal Service (MPTS). This is an operationally separate part of the GMC, designed to provide separation between the investigation/prosecution of complaints, and adjudication.
Once a doctor is referred to an FTP tribunal, the case management stage begins. There is usually a case review, generally a telephone conference, between the GMC and the solicitor instructed by the MDU. It will often take several months for a case to progress to an FTP tribunal hearing, during which time the GMC will investigate further and may seek expert evidence, as may the MDU.
FTP tribunals have between three and five members. In addition to the chair, who might be medical or non-medical and may be legally qualified (a Legally Qualified Chair, or LQC), there must be at least one medical and one non-medical tribunal member. Relevant legal points are addressed during hearings by the LQC or a Legal Assessor. Hearings before the FTP tribunal are intended to be 'holistic', in that allegations will be brought forward based on all the evidence obtained during the investigation stage including health and performance assessment reports, and any allegations relating to the doctor's health, performance or conduct, or based on a caution, conviction or determination.
The FTP tribunal has three stages. First, the evidence is heard and the panel must determine whether or not the facts of the case are found proved. If the facts are not found proved, the case will not go to the second and third stages. Second, if the facts are admitted or proved, the FTP tribunal must decide whether the doctor's fitness to practise is impaired. It is the doctor's fitness to practise at the time of the hearing that is relevant, though the nature of the original misconduct will be taken into account. The panel will have to take into account any evidence of remediation including assessing the success of doctors' efforts to reform.
If fitness to practise is found to be impaired, the FTP tribunal must then decide what, if any, sanction should be applied to the doctor's registration. In doing so, the tribunal must take into account the protection of patients, public confidence in the medical profession and the need to uphold standards of medical practice. The tribunal may take into account mitigating factors such as a demonstration of insight by the doctor and any steps that the doctor has taken to address the problem. Evidence of this may be provided through testimonials from colleagues, patients and others.
The FTP tribunal can take the following actions:
If the doctor's fitness to practise is not found to be impaired, the FTP tribunal may decide to issue a warning, if appropriate.
Of 195 FTP tribunals completed in 2017, 76 resulted in suspension and 62 resulted in erasure of the doctor's name from the register1.
The proportion of erasures is low. If erased, a doctor will be able to apply to have his or her name restored after five years. However, a doctor must be able to demonstrate fitness to practise in order to be restored, and erasure usually marks the end of a medical career.
Doctors are expected to attend hearings at the MPTS. If not, the committee or tribunal may proceed to hear the case in their absence.
Please contact the MDU as soon as possible if you are asked to attend a hearing.
The decision reached by an investigation committee, interim orders panel or FTP tribunal, together with reasons, will be notified to doctors, their employer and any person or body who made the complaint. The decision will also be published. The sole exception is in relation to confidential information about the doctor's physical or mental health.
Where the case is closed with no finding of impairment and no warning, the GMC will remove all information about the IOT from the public record of the doctor's fitness to practise. However, where the IOT has suspended the doctor and there is later no finding of impairment and no warning, the IOT information will be removed from the doctor's FTP record but the entry on the register will show that they were not on the register for the period of suspension. The Medical Act 1983 s41a requires the GMC to record suspension by an IOT in this way.
The GMC has power to appeal MPTS decisions to the High Court if considered to be unduly lenient and it is necessary for the protection of the public to do so. The Professional Standards Authority for Health and Social Care can also join such an action.
Demonstrations of insight into the causes of the incident that led to the complaint, and providing evidence of remediation to put things right, can be powerful ways for a doctor to demonstrate they are fit to practise.
A GMC study of cases that were considered by FTP tribunals (but not cases relating to health or convictions) showed that evidence of insight correlated with whether a doctor was erased or given a less serious sanction. Doctors who showed insight and said sorry were ten times less likely to be erased than those who did not.
GMC FTP investigations are stressful for doctors and we would encourage any MDU member receiving notification of a complaint to the GMC, even if the complaint is to be passed by the GMC to the responsible officer or treated as a provisional enquiry, to make contact with the MDU as soon as possible and before responding.
We are experts in assisting doctors at the GMC, and it is never too soon to ask for help.
This guidance was correct at publication 20/12/2018. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.
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