I think you’ll agree with me when I say: doctors working in the UK are under incredible pressure.
Trapped between the ever-increasing demands of a growing and ageing population and years of underfunding by successive governments, overstretched doctors risk not just stress and burnout – but also being investigated by the General Medical Council (GMC) and Medical Practitioners Tribunal Service (MPTS).
After some recent controversial decisions (most notably Dr Bawa-Garba) many doctors have lost confidence in the GMC’s processes – fearing they might be unfairly made a scapegoat for systemic failures.
On top of loss of earnings and the premature ending of a rewarding vocational career, GMC investigations and MPTS tribunal hearings can be highly public affairs, they can drag on for months or years, they can have a huge impact on your mental and emotional health, and they can have a long-standing impact on your reputation (even if eventually there is no case to answer or no sanctions are imposed).
In response to a high volume of enquiries on this topic from concerned doctors, this guide has been prepared by specialist medical regulatory barrister Stephen McCaffrey, founder of Kings View Chambers and GMC Defence Barristers, aiming to:
- raise awareness of relevant GMC processes and guidance
- point out dangers and pitfalls that often lead to GMC investigations and sanctions
- show simple steps to lower the risk of losing your GMC licence and registration
It is hoped that the information in this guide will be useful for medical students as well as fully qualified doctors, for both UK-trained and overseas doctors who are considering coming to the UK to work, and for doctors who work in both the NHS and private practice.
Please bookmark and share this free guide with others if you have found it to be useful.
It will be kept up to date, so please let me know if you have any corrections or suggestions.
1. You Should Expect To Be Referred To The GMC At Some Point In Your Career
If you are a doctor working in the UK today, statistics show you should expect to be the subject of a GMC complaint at some point in your career. The GMC view such complaints as an ‘occupational hazard’, however most doctors who approach us for legal advice and support have little insight into this process and are ill-prepared for this extremely stressful eventuality.
The NHS as a whole receives around 571 written complaints every day – up substantially from around 480 per day in 2013-2014.
Between 2011 and 2016, the GMC received an average of about 8,000 complaints per year according to ‘The state of medical education and practice in the UK’ (2017).
During this period there were just over 230,000 doctors licensed to practise in the UK – meaning that each year you have approximately a 3.5% risk of being the subject of a complaint.
The career of a UK doctor typically lasts for 35 or more years (assuming a typical doctor graduates at around the age of 23 and retires at around 60).
Therefore with an expected annual complaint rate of 3.5% and a career length of 35 years, you can statistically expect to be the subject of at least one complaint to the GMC within your working lifetime.
Now it is important to point out that not all complaints to the GMC will result in a full, formal investigation – in 2016 only 18% of complaints were formally investigated. (This figure is down significantly from the previous five year average of around 30%, reflecting some recent changes in GMC procedures – for example to explore alternative means of resolution).
And even if your case progresses to a full investigation and MPTS hearing, the most serious sanctions such as suspension or removal from the medical register are only imposed in a small proportion of cases – around 9% of investigations conducted in 2016.
However it is clear that the GMC believe that complaints and investigations just need to be accepted as part and parcel of being a doctor. Even the GMC Chair has been investigated – twice!
In a House of Commons health committee hearing in 2015, Professor Terence Stephenson, the Chair of the GMC, said that doctors in the UK should treat investigations by the GMC as an ‘occupational hazard’ – and highlighted the need for doctors to receive military-style resilience training to help them to cope with the stress of an investigation:
“I’ve personally been investigated twice by the GMC so I think doctors recognise it is an occupational hazard. Having complaints against you if you have a career of 30 years, seeing 25-30,000 patients over the course of your career, it happens.”
And two other trends look likely to increase the risk of GMC referral even further in coming years.
The first trend is for UK doctors to have an increased number of patient consultations each year. According to research by The King’s Fund, the number of GP consultations grew by more than 15% between 2010/11 and 2014/15 – while the GP workforce grew by just 4.75 per cent.
And according to The Health Foundation, the total number of hospital admissions in the English NHS increased by 28.1% in the ten years from 2006 to 2016.
Meanwhile, there is also a general trend of an increasing number of fitness to practise enquiries being made to the GMC over time – the baseline figure in 2007 and 2008 was just around 5,000 enquiries each year, with a 24% increase in enquiries between 2009 and 2010 alone.
And this is against a backdrop of a trend of increasing medical litigation – research from the Medical Protection Society (MPS) extrapolated that the average full-time GP could expect to receive two claims against them from their work during their careers.
It is therefore realistic to expect a referral to the GMC at some point in your career – but just how bad would a GMC investigation really be?
2. GMC Investigations Are Utterly Traumatic Experiences – Regardless Of The Final Outcome
The trauma experienced by a doctor facing a full GMC investigation cannot be overstated – and the phrase ‘second victim’ is very apt here. A GMC investigation is a very dark cloud that looms large over the whole of your personal and professional life for a substantial period of time, even if your fitness to practise is eventually found not to be impaired and no sanctions are imposed.
As soon as you find out that you are the subject of a GMC investigation, your first reaction might be the perfectly natural fear of losing your livelihood.
Most GMC investigations are concluded with no further action – around 63% of the 2,014 investigations concluded in 2016 ended this way. Around 17% of the investigations concluded in 2016 were closed with advice given to the doctor, while 5% resulted in warnings. Another 7% of cases resulted in conditions or undertakings to allow the doctor to continue to practise with restrictions. And finally, 9% of cases closed in 2016 resulted in the most serious level of sanction, suspension or erasure. So in 2016, just under 1 in 10 investigations resulted in the doctor having their medical licence taken away from them temporarily or permanently.
Although the number of doctors who do eventually lose their medical licence as a result of a fitness to practise decision is extremely small, the potential loss of livelihood to someone who has devoted so many years to medical training and qualifications could be huge.
When you consider the accumulated lifetime earnings for a UK doctor over a 35 year career, erasure from the medical register could easily represent a potential loss of earnings of £1,000,000 to £2,000,000 in total.
However, even when no serious impairment is found in your fitness to practise, and no sanctions or minimal sanctions are imposed, you will still find the process of being investigated by the GMC extremely traumatic because:
- GMC Investigations Are Lengthy and Highly Public
- GMC Investigations Are Legalistic and Adversarial
- GMC Investigations Seriously Damage Your Mental Health
- GMC Investigations Change Your Practice – And Not Necessarily For The Better
- GMC Investigations Impact Professional And Personal Relationships
- Lenient MPTS Decisions Can Be Appealed to the High Court
GMC Investigations Are Lengthy and Highly Public
GMC investigations can be very lengthy, drawn-out affairs that can take months or years before they get fully resolved – so you face having this cloud hang over you for the medium term.
Data released in the Professional Standards Authority review of the GMC in 2016/17 shows that there were 636 cases in 2016/17 that had been open for over 52 weeks – but that even this figure was down significantly from 2013/14 (at which point there were 1325 cases that had been open for more than 52 weeks).
By their nature, GMC investigations into the conduct of doctors tend to be very public, often attracting a large amount of unwanted press attention – in part, because the medical regulators publish detailed accounts of your misconduct.
MPTS has a statutory duty to publish the decisions reached by medical practitioners tribunals and interim orders tribunals online on the MPTS ‘Recent Decisions’ page, as per their ‘Publishing hearing decisions’ factsheet.
And the details will also be published on the ‘List of Registered Medical Practitioners’ database on the GMC website, as per their ‘Publication and Disclosure Policy’.
You may not be aware of this, but the MPTS also shares decisions on fitness to practise cases with a wide range of other UK, EEA, and international regulators:
“The MPTS circulates all fitness to practise sanctions and actions on a monthly basis to a wide range of UK / EEA recipients and international regulators, by means of an electronic decision circular.”
“The list of recipients held by the MPTS has grown during the time we have been sending the decisions circular. There are no clear criteria for inclusion and recipients have been added to the list if their request has appeared to be ‘reasonable’.”
“We consider that as a minimum this will enable us to provide the decisions circular to; RROs, Royal Colleges, the PSA, the CQC, NHS organisations, private healthcare providers, health departments in the four countries, the RQIA, HIW, HIS, locum agencies and Deaneries”
“If the prospective recipient is responsible for regulation, provision, supervision or management of health professionals/services outside the UK they will be provided with a copy of the decisions circular, capturing appropriate European and International regulators”
The publication of investigations by the GMC / MPTS is time-limited, and does depends on the outcome of the hearing and whether the doctor remains registered – but at the upper end of things, if you are erased from the medical register for fitness to practise reasons you can expect to have your information published online by the regulators for a period of 10 years.
A recent tribunal decision clearly demonstrates two points – firstly that some people have deep concerns about the possible reputational damage of being involved in tribunals, but also that MPTS are keen to put as much of the process in the public domain as possible.
Concern about the potential reputational damage caused by very public MPTS decisions can even be felt by witnesses – who have not been accused of any wrongdoing:
“Ms Barbour, on behalf of the GMC, made an application under Rule 34(5) for a witness’ name to be anonymised from the Tribunal’s determinations… Ms D stated that she did not want her name specifically mentioned in the publicly available minutes that would appear on the internet about the hearing and she could not understand why it would be necessary for her name to appear. Ms D raised concerns that ‘in the healthcare industry people will often google other people’… Ms D was concerned about the potential reputational damage and unfair impression that could arise if her name were to be casually googled by someone, and who then saw her name appear in a determination relating to a doctor’s misconduct, particularly given her particular line of work.
Application for the anonymisation of a witness – 10/05/2018”
The tribunal acknowledged that it does have the power to anonymise witnesses under GMC Fitness to Practise Rule 35(4):
‘The Committee or Tribunal may, upon the application of a party, agree that the identity of a witness should not be revealed in public’.
However in this particular instance, the application for anonymisation was declined – because the concerns about reputational damage raised by the witness were not deemed to be compelling enough to justify anonymity:
“The Tribunal noted that this was not an application for special measures and that Ms D was not a vulnerable witness… [There] was no persuasive evidence of any particular vulnerability or other compelling reason for Ms D’s name to be anonymised. No specific reason had been advanced, other than her apparent supposition or apprehension…. The Tribunal determined to refuse the application.”
And, of course, as a doctor under investigation you will not even have the option of applying for anonymity – by design, the process is intended to shine a very bright spotlight on your conduct.
At some point in the future you may wish to try and clean up the significant online footprint left by a public investigation of this kind – perhaps under EU ‘right to be forgotten’ legislation, if the material is ‘inadequate, irrelevant or no longer relevant, or excessive’.
But you will quickly find out that each publication is handled on a case-by-case basis, results can still be seen unmodified outwith Europe, your request can be challenged on the grounds of ‘public interest’, and the nature of the internet is such that once information like this has been published – whether by the GMC / MPTS, or in a corresponding newspaper article or blog – it is virtually impossible to remove it fully.
This is supported by comments made in a recent piece of qualitative research published by BMJ Open:
“Online media coverage might impact the disciplined healthcare professional for long after the process, with the case coming up every time their name is typed in a search engine. Recently the opportunity arose to ask search engines to delete certain links to webpages that might be harmful and lay in the past, the so-called ‘right to be forgotten’. This, however, does not erase the specific webpage (only the links), and people might still be able to retrieve the information using other strategies. Respondents mentioned that public measures and additional media coverage furthermore contribute to the social impact the process has, with people in their near environment asking them about the situation.”
One issue here is that the right to remove your name from search results does not extend to the source article itself – which may be protected by a ‘journalistic exception’ – just the appearance of that article in search results:
“This means that the Guardian could have an article on its website about an individual that’s perfectly legal, but we might not legally be able to show links to it in our results when you search for that person’s name. It’s a bit like saying the book can stay in the library but cannot be included in the library’s card catalogue.”
David Drummond, Chief Legal Officer for Alphabet (Google)
And finally, attempting to cover up an old news story usually leads to the newspaper being notified and may serve as the basis for a new follow-up story:
“Fryar’s reference to removals attracting comment is perhaps best illustrated by the policies of UK national newspapers when Google notifies them that links to content have been removed. Currently many use a removal notice as the basis of a follow-up news story. This gives renewed prominence to information that someone wants to be suppressed (Google does not disclose who has asked for results to be removed when it notifies publishers).”
Your story may also be added to a list of web pages which have been removed by Google’s search results – such as these lists published by the BBC and the Telegraph.
GMC Investigations Are Legalistic and Adversarial
Current Fitness to Practise processes are “legalistic, adversarial, costly and time-consuming” – according to an October 2017 Department of Health paper for consultation, “Promoting professionalism, reforming regulation”.
The same Department of Health paper points out that “for many of the regulators fitness to practise is their single largest expense”.
Figures for 2015-16 showed that the £63M spent on FTP and MPTS made up 62% of the total expenditure of the GMC.
This huge investment in Fitness to Practise is in stark comparison with relatively low GMC spending in certain other areas – in particular the 7.6% spent on Education, with just 1.6% spent on Standards.
It will be a source of no little frustration to doctors in the UK to know that well over half the money you pay to the GMC in annual subscription fees each year is spent on these ‘legalistic, adversarial, costly and time-consuming’ investigation and tribunal processes.
In fact – although the GMC website says that “All doctors pay a fee to register with us and an annual retention fee to remain on our register” – you may feel that it is perhaps more accurate to say that you pay an annual retention fee so that you may be removed from the GMC register.
The DoH paper is littered with references to the hostile, confrontational nature of the investigation and tribunal processes, the negative impact of this stance on culture and morale, and the urgent requirement to reform by shifting focus more on to education and professional development:
“Strong focus on fitness to practise and conducting cases in an adversarial way affects the outlook and culture of the regulatory bodies. The legalistic and defensive nature of the regulators can make them seem unapproachable and bureaucratic to both complainants and registrants. This needs to change.”
“More needs to be done to move to a more inquisitorial approach that seeks to establish the circumstances of a case rather than an adversarial approach.”
“This section sets out what more the regulators could do to support professionalism through education, revalidation and continuing professional development. Progress in this area will be dependent on success in streamlining fitness to practise processes. This will allow the regulatory bodies, working with professional bodies and others, to focus more effort on supporting professionalism in all registrants. This will in turn help create a virtuous circle in which fewer cases require fitness to practise proceedings.”
GMC Investigations Seriously Damage Your Mental Health
In 2014, a Medical Protection Society (MPS) survey of 180 doctors investigated by the General Medical Council revealed that almost three-quarters (72%) believed the investigation had a negative impact on their mental and/or physical health.
For anyone, losing your job ranks in the top 10 most stressful experiences in life – coming in at 8th place according to the Holmes-Rahe Life Stress Inventory. Not to mention the cascade of other possible consequences – including a change in financial state, or a change to a different line of work.
However the stress of potentially losing your job will be more keenly felt by doctors, who may be particularly high-achieving and perfectionistic by nature, for whom medicine is a vocation rather than just a job, and for whom a medical licence is likely to be a prerequisite for any similar healthcare role.
It has also been suggested that “the attributes that make a good doctor (for example, being caring, kind and conscientious) can also make them particularly vulnerable if they become the subject of a GMC investigation”.
So it is no surprise that GMC investigations have a strong negative impact on your mental and emotional health – according to a report by Professor Tom Bourne at Imperial College London:
Professor Bourne’s research drew on the responses of around 8,000 doctors, and suggests that:
- doctors who have been referred to the GMC are at elevated risk of moderate to serious depression and anxiety
- doctors who have recently faced an investigation are twice as likely to harbour thoughts of self-harm or suicide
- almost four out of 10 doctors felt bullied during the investigation
“A number of doctors who had received warnings reported suffering from mental and physical health problems. Many also described experiencing a huge loss of confidence in their own ability.”
“Doctors who received warnings talked about their feelings of shame and embarrassment resulting from the existence of the warning on their public record.”
“Doctors who received warnings talked about their feelings of shame and embarrassment resulting from the existence of the warning on their public record.”
“Throughout the process, because I’m involved in trauma psychotherapy, a colleague has given me trauma psychotherapy throughout. I’ve seen my GP, I’ve been able to avoid having medication. My wife has not, my wife remains on antidepressants as a part of this, because there is a huge family impact on this.”
(Doctor, Misconduct, Warning)
“Many of the doctors who received warnings were extremely angry and felt a strong sense of injustice about the existence of the warning on their record. A number expressed that they would have liked to contest their FtP case and that they did not accept that the warning was justified. However, such doctors had been advised by their medical defence organisations to accept the warning rather than take the risk of going through a panel hearing which might subsequently lead to more severe sanctions. The perceived unjust nature of the warnings in these cases continued to rankle with doctors making it more difficult for them to overcome the psychological impact of their case.”
‘The impact of complaints procedures on the welfare, health and clinical practise of 7926 doctors in the UK: a cross-sectional survey’
Negative psychological factors are cited frequently as a consequence of FtP cases where doctors received official GMC warnings or restrictions:
- Stress / anxiety / depression
- Damage / devastation of family
- Financial loss
- Loss of social status
- Process took too long
- Haven’t recovered/lasting trauma
- Angry, bitter
- Tensions at work
- Found out who my real friends were
- Affected my health
- Bureaucratic nightmare
- Lack of support
- Dreaded receiving letters
Doctors are known to already have a higher prevalence of mental ill health and addiction than in the general population – compounding the negative experience of GMC procedures.
A series of interviews conducted with doctors who have needed time away from work on grounds of physical or mental health suggested that GMC processes:
- felt like you were ‘accused’ rather than ‘ill’
- were often anxiety-provoking and distressing
- were detrimental to health
- felt like dealing with an unaccountable bureaucracy
- were like a ‘court case’
- were time-consuming
- offered little support regarding getting back to work
This is backed up by the comments of Professor Clare Gerada, former RCGP Chair, and current Medical Director at the Practitioner Health Programme (PHP) – the support service for sick doctors:
“When we see someone at PHP who has been referred to the regulator we are very concerned – even if the person is not depressed at the time, we consider that a referral is a massive risk factor for depression, and we more often than not start treatment for depression with antidepressants and CBT and provide support for them during the process.
The GMC fitness-to-practise process has been described as akin to having a diagnosis of cancer and for doctors who are vulnerable to start with can be the tipping point for serious mental health problems.”
A previous internal GMC review in 2014 identified 28 doctors who had committed suicide while under fitness to practise investigations between 2005 – 2013. So it is a small step in the right direction that the GMC is now able to pause FtP investigations for up to six months to allow doctors suffering from mental health conditions to undergo appropriate treatment.
GMC Investigations Change Your Practice – And Not Necessarily For The Better
Even if you are allowed to keep practising medicine after the investigation – eg your investigation concludes with no action taken, warning, conditions, or undertakings – research shows that your practice will permanently change. And not necessarily for the better.
According to Professor Bourne, many doctors who have experienced the GMC complaints process directly or indirectly, admit to adopting a much more defensive clinical practice – including ‘hedging’ (eg over referring, over investigating, over prescribing), avoidance (eg avoiding high-risk patients, abandoning procedures early).
Needless to say, this change in working practice engendered by exposure to the investigation process does not add to your sense of enjoyment of your work, nor does it necessarily positively impact patient care.
“Having once had the experience of an FtP case doctors state that they are much more aware of the possibility that patients can complain and issues can arise and they, therefore, behave in a generally more cautious, some say overly cautious, manner.”
“In fact, some of those interviewed perceived that this more defensive practice was actually having a negative impact for their patients as they were potentially being sent for tests they might not really need and because their doctor’s time and NHS resources were not being as efficiently used as they should be.”
“Results show that low proportions believed that their practice was safer or that their skill as a practitioner had improved as a result of the warning.”
‘The impact of complaints procedures on the welfare, health and clinical practise of 7926 doctors in the UK: a cross-sectional survey’
Results from a quantitative survey of doctors who had received restrictions following a tribunal decision showed a variety of profoundly negative consequences on their approach to practice:
- More risk averse
- Covering myself
- Anxious – seeing problems / issues
- Lack of confidence in my ability
- Don’t trust colleagues any more
- More cynical
- I’m very legalistic
- Refer more
- Unenthusiastic / demotivated
Although the research did indicate that a small proportion of doctors felt that the investigation process ultimately helped them to become better doctors, this was not the experience of the majority.
GMC Investigations Impact Professional And Personal Relationships
A lot of the stress associated with GMC Investigations comes from the potential impact on all of your professional relationships, both now and in the future – including:
- health boards
- hospital trusts
- each relevant performers list
- responsible officers
- GP partners
- defence union
- current employers
- potential future employers
You may be expected to continue your ongoing professional relationship with the person who made the complaint. Good Medical Practice guidance on Maintaning Trust states that “You must not allow a patient’s complaint to adversely affect the care or treatment you provide or arrange. You should end a professional relationship with a patient only when the breakdown of trust between you and the patient means you cannot provide good clinical care to the patient.”
As you would expect, the severity of professional and personal consequences increase dramatically depending on the outcome of the investigation – even an official warning, one of the lowest levels of GMC response, can have a huge impact.
“This research has uncovered a good deal of evidence that suggests severe and long-term impacts are occurring for many doctors receiving warnings from the GMC. Many who received warnings report that their current and ongoing employment is adversely affected. Some have been unable to work again at all.”
“Considering that warnings are intended to be the lowest level of action that the GMC can take following an FtP investigation, the reported impact on doctors’ careers and employability in the short and long-term appears to be, in many cases, disproportionately and extremely negative.”
“Others reported that they had experienced great difficulty in gaining employment following the receipt of their warning. Doctors also reported having to completely change the direction of their career as a direct result of having a GMC warning on their record. Some doctors who were in training when they received their warning found it difficult to complete their training.”
“Many doctors felt that having a warning greatly affected their confidence when applying for new roles, held doctors back in their career and restricted the kinds of jobs applied for. ”
“Another employer also commented that GPs, in particular, can be faced with the financial implications of having to pay for locums to cover their work.”
Having undertakings / conditions imposed has an even more severe impact on your career:
- almost a quarter of doctors surveyed were no longer practising
- more than half had to find new employment
- doctors felt that employers did not want to have to fulfil the supervisory requirements
- doctors felt that employers did not want to be ‘tainted’ by taking them on
- doctors felt they had to apply for more positions to be successful
- doctors felt that career options were limited (either by role or by geography)
- doctors felt that as a result of the limitations they were becoming de-skilled
- their careers were held back by the above
“Some doctors with health related conditions/undertakings described feeling that they were living under a ‘cloud of suspicion’. Because the publication of their health related undertakings/conditions was not specific in order to protect their confidentiality, people made assumptions about their health issue. Those who had a mental health issue such as a severe bout of depression or who had received successful treatment for an ongoing condition felt that this was unjust and stigmatised them even further. Doctors can consent to the GMC publishing fuller information about their health but many doctors interviewed were not aware of this.”
The effects of having restrictions on practice or warnings
Research Report for the GMC, 2015
Finally, there have been reports that a series of doctors have emerged from the remediation process only to find that they have been effectively declared to be ‘too expensive to insure’ – and failure to secure appropriate indemnity cover would still effectively end your career:
Lenient MPTS Decisions can be Appealed to the High Court
If the GMC do not believe that the sanctions imposed by MPTS, their own tribunal, are strong enough, they can – and will – appeal the decision in the High Court.
The highest profile recent case of this kind was Dr Hadiza Bawa-Garba in January 2018, but figures revealed by Pulse show that the GMC launched over 23 appeals against MPTS decisions in just 10 months.
Note that all of these appeals were to increase sanctions imposed by MPTS, rather than to lessen them.
Having your case referred to the High Court obviously ramps up your stress and prolongs your ordeal – just when you thought it was finished.
The former health secretary Jeremy Hunt announced plans for the Department of Health and Social Care to remove the GMC’s right to appeal – which would mean that only the Professional Standards Authority (PSA) would have the right to appeal MPTS decisions.
However, the PSA joined the GMC in three of the above appeals – and can act if they consider that a decision does not protect the public sufficiently, and/or if they have an interest in the case (eg if it feels it can bring an important contribution to the process, or if it feels matters of law relevant to its own jurisdiction are raised).
So you want to avoid the severe physical, mental, social and financial trauma associated with a GMC fitness to practise investigation – how do you protect yourself?
3. Suspension And Erasure – Understanding The GMC’s 10 Deadly Sins
One of the most important steps to protect your medical licence is making sure you avoid what the GMC considers to be the very worst offences. This list is the product of years of experience representing doctors at MPTS tribunals, with additional data from the GMC’s own publications. To understand why certain offences are deemed more serious than others requires an understanding of what the GMC’s role is – and isn’t.
The 10 most serious offences from the perspective of the GMC are:
- dishonesty in role as doctor (eg falsifying clinical records)
- dishonesty to obtain / keep employment (eg falsifying references or qualifications)
- clinical issues / poor patient care (eg failure to diagnose, problems with paperwork, consent)
- inappropriate relations (eg with patients, colleagues)
- patterns of offending (eg demonstrating consistent behaviour)
- prescribing issues (eg theft and forgery)
- lying and covering up (eg failing to admit allegations at hearing)
- misconduct in personal life (eg criminal, sexual, violence, drink driving, fraud, social media)
- lack of remorse (eg failing to apologise and express suitable regret)
- failing to demonstrate remediation (eg failing to undergo process to change behaviour)
There are a number of other offences which, although serious, are perhaps less likely to lead to permanent erasure, for example:
- health (eg impact your physical or mental health on your fitness to practise)
- communication and respect for patients (eg failure to communicate appropriately with patients)
- professional performance (eg poor performance in non-clinical aspects of work)
To understand what makes these the most serious offences, it is important to first understand what the role of the GMC is – and isn’t.
The GMC Is Not Here to Protect the Medical Profession
Some doctors mistakenly still see the GMC as more of an old boy’s club, rather than a modern regulator with teeth.
However for fifteen years, between 1999 and 2014, the GMC website stated that “We are not here to protect the medical profession – their interests are protected by others. Our job is to protect patients.”
The language may have softened somewhat in the last few years – with an increasing emphasis now placed on the role of the GMC in helping to support doctors.
But if you find yourself under investigation, you may quickly find that the GMC is far less concerned about protecting doctors than you first thought – it’s two main concerns are patient safety and maintaining public confidence in the profession as a whole.
These two main concerns are underlined in the GMC’s ‘The State of Medical Education and Practice in the UK’, 2015 – “those who are subject to the most serious sanctions have either placed patients at serious risk or undermined the fundamental trust in the profession or in some cases both.”
The State of Medical Education and Practice in the UK, 2015
GMC Priority #1 – Patient Safety
The GMC serves five main functions, underpinned by the Medical Act 1983 (Amended) – including managing the UK medical register, developing standards and guidance for doctors, overseeing medical education and training, managing revalidation, and investigating and acting on concerns about doctors.
The GMC’s investigation process is based firstly on the concept of ‘impairment of fitness to practise’ set out by the Act – focusing on patient safety:
“A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of –
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health;
(da) not having the necessary knowledge of English (but see section 2(4));
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.”
Medical Act 1983 (Amended), Section 35C(2)
Stephen McCaffrey Says:
In some cases, the alleged impairment falls neatly into a single category – for instance adverse physical health or a conviction for a serious crime. In other cases the alleged impairment could be argued variously as negligence, misconduct or deficient professional performance, depending on factors such as the number and seriousness of the relevant offences. If your livelihood is on the line and you are defending a complex case like this you would be well advised to seek the advice of an experienced medical lawyer familiar with the relevant case law – for example the case of Dr Calhaem.
Perhaps the most obvious risk to patient safety is poor clinical competence – and this can certainly lead to the imposition of the most serious sanctions, particularly if a pattern of offending can be established.
However the GMC uses a broader interpretation of patient safety that also includes:
- dishonesty (eg falsifying UK visa, qualifications, CVs and references to obtain employment)
- administrative (eg failing to arrange personal indemnity insurance)
- issues in personal life (eg violent, drunken or sexual misconduct)
It should be pointed out that the GMC also considers potential risks to future patient safety – so you could potentially lose your medical licence even if no actual harm was caused by your actions.
GMC Priority #2 – Public Confidence in Profession
In addition to the idea of ‘impairment’ which directly impacts on patient safety, there is another main thread which comes up again and again in fitness to practise cases – that of the need for the GMC to maintain public confidence in the profession as a whole.
This is perhaps best summed up in the famous words of Lord Bingham:
“The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price”.
Lord Bingham MR, Bolton v The Law Society 
Doctors are regularly voted as one of the most trusted professions in the UK, with 91% of the British public trusting them to tell the truth – second only to nurses at 94%.
2017 Ipsos MORI Veracity Index
This figure reflects the very high esteem that medical practitioners are held in by the public, particularly when compared to the figures for the police (74%), the ordinary man/woman in the street (64%), lawyers (54%), bankers (38%), estate agents and journalists (27%), and politicians (17%).
A large part of the MPTS decision process will be about maintaining this very high level of public confidence in doctors as a profession – and so cases where your misconduct could be seen as harming confidence in the medical profession as a whole are much more likely to result in the imposition of sanctions.
These cases may well be unrelated to patient safety – for instance fraud, or inappropriate sexual relations with a colleague – but can still result in the most serious level of sanctions being imposed because of their potential to damage the public perception of doctors in general.
Guidance issued by the GMC to help tribunal members with choosing appropriate sanctions makes this absolutely explicit:
“Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession.”
There is an extent to which these twin criteria – patient safety and public confidence – can be thought of as creating a system of multiple jeopardy, as pointed out by the British Association of Physicians of Indian Origin (BAPIO):
“The contention is that the GMC misuses the principle of ‘public faith/trust/confidence in the medical profession’ as a ready excuse to prosecute doctors in the MPTS as well as in appealing against MPTS decisions.
When doctors are prosecuted for negligence or misconduct while engaged in their profession the main determinant should be ‘patient safety’. There have been numerous instances in which the doctor has been punished for misconduct or negligence for patient safety, has served their suspension or other penalty, made successful attempts to return to the profession only for the GMC to then prosecute them again using the aforesaid principle of public faith/trust/confidence in the profession even when their patient safety concerns have been satisfactorily addressed.”
Focus on Repeated Patterns of Offending
If the MPTS tribunal finds that your fitness to practise has been impaired or that you risk bringing the profession into disrepute, the future of your medical licence will depend to a large extent on whether or not they feel you can be successfully rehabilitated – or whether on balance they believe you will likely continue to engage in the behaviour in question.
To this end it is important that you can demonstrate:
- one-off transgression, rather than repeated patterns of behaviour
- short-term issue, rather than issues over a prolonged period
- insight into what specific guidance your behaviour breached
- remorse for the detrimental consequences of your actions on others
- that you have made a good faith attempt at remediation (eg engaging with training, mentors, etc)
The GMC has emphasised in recent years that it is less interested in punishing doctors for one-off clinical mistakes that do not form part of a pattern of behaviour:
“Speaking in an exclusive briefing, GMC chief executive Niall Dickson said: ‘If you as a doctor have done something to me as a patient, it’s a one-off thing, it may be a terrible thing that has disastrous consequences for me. But… if it’s a mistake and there’s nothing reckless or deliberate, and lessons are learnt from it, there shouldn’t be a risk to the profession going forward.’ ”
This is backed up by comments made by the GMC in a Factsheet released in connection with the Dr Bawa-Garba case:
“In recent years we have significantly refocused our fitness to practise processes so that we only fully investigate those complaints involving serious or persistent concerns. In the past four years alone we have reduced the number of investigations of single clinical incidents by 56 per cent.”
“Even in the majority of cases where relatively serious clinical failures occur (not honest errors or mere negligence) it is unlikely to result in serious action being taken against a doctor’s registration: our primary focus is on the likelihood of repetition and the doctor’s ability to provide good care going forward.”
This explains why dishonesty is such a dangerous allegation for a doctor to face – because once you have established a pattern of dishonesty, particularly if you are perceived to be dishonest in your dealings with the GMC and MPTS, it becomes very difficult for you to demonstrate convincingly that you have insight, feel remorse and can be successfully remediated.
Analysis of GMC Cases Resulting in Erasure or Suspension from the Medical Register
In 2015, the GMC published a report analysing all investigations concluded in the previous year that resulted in erasure or suspension – the two most serious sanctions.
Key findings of this report chime with our first-hand experience from providing legal representation at medical tribunals – and include:
- most cases where doctors were erased or suspended related to incidents in the doctor’s working life (103 cases), rather than personal life (16 cases)
- personal cases were slightly more likely to get erasure, professional cases were slightly more likely to get suspension
- dishonesty was the single largest type of case, followed by inappropriate relations and clinical issues
- most complaints leading to erasure or suspension came from employers, not members of the public
- cases referred by members of the public were more likely to relate to clinical issues and inappropriate patient relations
- most personal cases leading to erasure or suspension related to criminal and/or sexual issues
- suspension was more likely than erasure in the relatively few cases where the doctor under investigation demonstrated insight, remorse and remediation
‘Analysis of cases resulting in doctors being erased or suspended from the medical register’, DJS Research, prepared for GMC, October 2015
The GMC Wants Automatic Erasure for Certain Criminal Offences
The regulator has said its ‘current powers are deficient in a number of areas’ and that it is pursuing ‘a presumption of erasure from the register where a doctor has been convicted of a serious criminal offence’ – this would ‘better support public protection and public confidence’.
Although a GMC spokesperson has suggested the power of automatic erasure might only apply to cases where a doctor had been convicted of a very serious criminal offence – such as rape, murder or child abuse – there are many who feel that the medical fitness to practise system needs to be kept separate from the criminal justice system.
Dr Zoe Norris, the BMA GP Committee’s lead on salaried and sessional GP issues, said ‘The whole point of the MPTS is to look at the two issues separately. Is every serious conviction the same in the eyes of the GMC, with no possibility of mitigating circumstances?’, adding that ‘each case needs to be reviewed fairly and independently; blanket rules are unhelpful and seem counter-intuitive given the recent no confidence motion in the GMC’.
These sentiments are echoed by Dr Pallavi Bradshaw, MPS, who was addressing the recent conviction of Dr Bawa-Garba for Gross Negligence Manslaughter (GNM) – ‘While it has not yet been made clear whether such a rule would apply to GNM, it would be of significant concern if it were to become the expected norm that any doctor convicted of GNM will necessarily be erased from the medical register. Such convictions do not in themselves demonstrate whether systems failures and misfortune played a role or whether or not the doctor has shown they are capable of remediation.’
So you now understand what offences are likely to warrant the most serious sanctions from the GMC, and why – but what is your personal risk of being affected?
4. Are You At High Risk? – Understand Your Chances Of GMC Referral, Investigations And Sanctions
It is possible to break down more specifically your personal level of risk of GMC referrals, investigations and sanctions – based on your age, gender, location of qualifying and other factors. Statistics show that there are a number of factors that increase your risk of losing your medical licence. Interviews with employers lend additional weight to these statistics. Some of these factors you can’t necessarily influence, others you can – once you are aware of them.
Without even knowing it, you are likely to make a number of decisions in your career that will effectively place your UK medical registration at significantly higher risk.
According to data released by the GMC in 2015, the following demographics have been statistically shown to be at higher risk of complaints, investigations or sanctions:
Most doctors involved in cases which resulted in suspension or erasure were male – on average, four out of five cases involved a male doctor. In comparison, just 55% of all licensed doctors on the medical register are male.
Doctors aged over 49 were over-represented in cases that resulted in suspension or erasure – 52% of all such cases involved doctors aged over 49, but only 27% of all licensed doctors were in that age group.
Data released the previous year showed that doctors aged 50 or older are twice as likely to be complained about, compared to their younger colleagues. (SoMEP, 2014)
Black and Minority Ethnic (BME)
Doctors of BME origin were over-represented in cases – half of all cases involved a doctor of BME origin, but BME doctors make up just 30% of all licensed doctors on the medical register.
‘Analysis of cases resulting in doctors being erased or suspended from the medical register’, DJS Research, prepared for GMC, October 2015
A GMC review is to address why black and minority ethnic doctors are at greater risk of facing complaints from employers than their white colleagues – after recent data shows that BME GPs are 20% more likely to face a patient complaint, and 30% more likely to be investigated by the GMC.
This review is being led by Roger Kline, a research fellow at Middlesex University Business School, who previously wrote that:
“The executive teams of NHS England and the three main regulators are entirely white British. With the exception of NHS England, the non executive members are entirely white. 19% of nurses and midwives and 37 per cent of hospital doctors are from BME backgrounds. However, only 5% of senior managers, excluding chief executives, are from BME backgrounds. In 2012, just 1% of NHS chief executives nationally came from a BME background.”
The “snowy white peaks” of the NHS: a survey of discrimination in governance and leadership and the potential impact on patient care in London and England.
While this is another positive step, differences in outcomes for BME doctors in the UK has been commented on for many years – in spite of a number of previous high-level reviews:
“BME GPs face worse outcomes throughout their careers. This can’t be written off as a problem for overseas-trained doctors who have had less exposure to UK general practice. A UK-educated BME GP trainee is more than three times as likely to fail the clinical skills assessment component of the MRCGP exam as a white trainee, and UK-trained BME GPs are 20% more likely to face a patient complaint and 30% more likely to be investigated by the GMC during their career than their white equivalents. Seven of the nine doctors convicted of gross negligence manslaughter since 2004 have been BME. Pulse can also reveal that at least 60% of partners in practices receiving an ‘inadequate’ CQC rating are BME.”
Place of Primary Medical Qualification
The same report also points out that “cases that resulted in suspension or erasure were more likely to relate to doctors that qualified outside of the UK than doctors that qualified in the UK”.
Approximately two-thirds (66%) of licensed doctors on the medical register qualified within the UK, and only a third qualified outside the UK (34% IMG/EEA). However, out of the cases where the eventual sanction applied was suspension or erasure, only around one-third (31%) qualified in the UK, whereas around two-thirds (69%) qualified outside the UK.
Based on a study from 2011, doctors with primary medical qualifications from certain countries appear to be substantially more likely to get suspended or erased. And it might surprise you to know that the country with the highest likelihood is France, and that half of the most sanctioned 20 countries are in the EEA – a fact the author speculates could be connected to reduced professional and linguistic requirements placed on EU doctors coming to work in the UK at that time:
- Russian Federation
It appears as though the country of graduation may even have a more pronounced effect on complaints than ethnicity alone – based on GMC data:
“Over a quarter of non-UK graduates and of BME EEA graduates were complained about, compared with a fifth of BME UK graduates and a little less than that for white UK and EEA graduates.”
Time Registered in the UK
On average, doctors who were suspended or erased had been registered in the UK for 17 years.
The limited data available suggests that doctors who qualified outside the UK may be more likely to be suspended or erased earlier in their careers (around 15 years) compared to doctors who qualified in the UK (around 23 years) – however this may not be statistically significant.
GP vs Specialist
GPs in general have a higher than average rate of being complained about:
“Only 3% of licensed doctors were subject to a fitness to practise complaint in 2015. This rose to 5% for those on the GP register.”
The state of medical education and practice in the UK 2016
However, these complaints are slightly less likely than average to lead to a full investigation.
Complaints are fairly well distributed across different clinical areas, but certain specialists do also appear to have an elevated risk:
“Around one in five specialists qualified in the occupational medicine and psychiatry specialty groups were complained about in the five years from 2012.”
An analysis carried out by Dr Richard Wakeford back in 2011 suggested that hospital specialists are being erased or suspended at around half the rate of GPs and others.
Who gets struck off?, Dr Richard Wakeford
Locum vs Non-Locum
A growing proportion of doctors in the UK are electing to work at least part of the time as a locum. Recent data from the GMC show an increase of nearly 12,000 locums between 2013 and 2017 – up to a total of almost 20% of all licensed doctors in the UK.
A greater proportion of locum doctors are complained about when compared to non-locum doctors – almost a quarter of all cases in 2014 that ended in suspension or erasure involved locum doctors (23%).
Locum doctors are overall very slightly more likely to be complained about than non-locums, and then a higher proportion of those complaints (about 5% higher) go on to meet the threshold for investigation.
A large proportion of the investigations carried out on locum doctors are carried out on locums who are neither on the GP or Specialist registers, nor in training – more than half of all complaints about locums in this category led to full investigations between 2013 and 2016.
Locum doctors who work exclusively through locum agencies are the most likely subgroup to have complaints investigated – over 60% of complaints of this type ended up as a full GMC investigation.
Surprisingly, although locum doctors are more likely to be complained about than non-locums, and GPs are more likely to be complained about than non-GPs – locum GPs are actually less likely to be complained about than non-locum GPs.
Poorly Performing Trusts
Data released by the GMC shows that poorly performing trusts – that is, trusts with lower CQC inspection ratings – generally have more investigations of their doctors:
“Doctors in trusts with poorer ratings from the CQC were more likely to be investigated by the GMC than those in trusts with higher ratings.”
The reason for this is primarily because of employer referrals, rather than patient complaints:
“Employer and organisational referrals drive the higher proportion of complaints about doctors.
Between 2010 and 2014, employers and other organisations made double the number of referrals per doctor for trusts rated inadequate by the CQC compared with trusts requiring improvement or rated good or outstanding.”
“This suggests that concerns were primarily mounting among employers, doctors and other organisations in poorer performing trusts rather than among the public.”
Another possible contributing factor is that poorly performing trusts are more likely to be disorganised and place an excessive workload on doctors, more likely to suffer from problems of management, and are less likely to have robust measures in place to handle concerns:
“What aspects of the working environment impact on professional standards?
One study found that many of the barriers to and enablers of good practice were linked to the environment in which doctors worked.
For example, barriers included:
– workload pressures leading to doctors accepting shortcuts that may lower standards
– limited time for reflection
– organisational cultures that discouraged doctors from raising concerns
Other studies have shown how the care that is delivered can be affected by financial pressures, high levels of clinical demand relative to supply, the quality of managerial and clinical leadership, and the relationship between doctors and managers.”
Differences In Law Within The UK
The GMC is obliged to conduct fitness to practise enquiries into doctors who are convicted under UK law, and more serious convictions attract more serious sanctions – however there can be some significant differences depending on whether you are in Scotland and England.
One of the main distinctions that comes up here is that while England has Gross Negligence Manslaughter (GNM), Scotland has Culpable Homicide (CH).
To be found guilty of GNM under English Law, the defendant usually needs to have – through gross negligence – breached a duty of care, and significantly contributed to the death of the victim. This means in effect that systemic factors that may have contributed are not given as much weighting as the actions of the individual being charged.
To be found guilty of CH under Scots Law, the defendant usually needs to have intentionally, recklessly or grossly carelessly committed an unlawful act that directly caused a death – and the prosecution of the healthcare professional needs to be seen as in the public interest. This means that firstly the healthcare professional’s intent is considered, and secondly systemic factors can be considered when deciding whether prosecution is deemed to be in the public interest.
Certain groups are currently pushing for a change in the law here, with the aim of moving the law in England closer to that in Scotland – after all, the GMC is supposed to treat all UK doctors the same.
But for now, if you are a doctor working in England, you need to be aware that you are at greater risk of losing your licence – because the test for culpability in manslaughter is set far lower than in Scotland, and because the judgement does not have to serve the public interest.
Rob Hendry: Gross negligence manslaughter does not exist in Scotland—is it time to move English law towards the Scottish position?
It seems an obvious suggestion that working more hours will mean that you see more patients, which will put you at greater risk of getting complaints.
A survey of 25 EU member states conducted in 2015 by Mary McCarthy, the vice president of the European Union of General Practitioners (UEMO), revealed that an average of 25 patient contacts per day is considered manageable.
Mary McCarthy: Would fewer than 25 consultations a day be a safer model for GPs?
But a recent Pulse survey of 900 doctors revealed that UK GPs have an average of 41.5 patient contacts per day (including face-to-face, telephone and e-consultations) – which is 60% more than the number considered safe by European GPs.
Professor Helen Stokes-Lampard, RCGP chairwoman, said that the survey “backs up what the college has been saying for years – that many GPs and our teams are regularly working way beyond what could be considered safe for patients, and potentially jeopardising our own health and well-being.”
“Our workload needs to be addressed – it has risen at least 16 per cent over the last seven years, yet the share of the overall NHS budget general practice receives is less than it was a decade ago, and our workforce has not risen at pace with demand.”
Dr Richard Vautrey, chairman of the BMA’s general practitioners committee said:
“This workload pressure also means GPs are increasingly suffering from burnout and patients are being put at risk of unsafe care. The BMA has called for practices to be empowered to set their own capacity limits for safe working, which includes limiting the number of consultations per day. Fewer consultations would mean longer contact time with patients, leaving doctors better able to ensure safe, high-quality care, that many feel is not possible within the current 10-minute consultation.”
And remember that fatigue can have as serious an impact on you as alcohol. Research shows that being awake for 18 hours produces performance levels on a par with having a blood alcohol level of 50mg per 100ml – the current drink-drive limit in Scotland. Remember that the next time you are tempted to add on a lucrative out-of-hours shift!
Understanding Employer Referrals To The GMC
The above points are borne out by a series of qualitative interviews conducted with NHS employers in 2016 – which give a very good insight into the thought process of employers when it comes to the possibility of making a complaint about you to the GMC:
“There was some suggestion amongst a number of interviewees that the likelihood of issues coming to light was not the same for all groups of doctors. For example, some felt that concerns were more likely to be raised against locums, doctors who qualified overseas, doctors approaching retirement and doctors that worked in specialisms that are easy to benchmark.”
“Conversely, some interviewees felt that concerns were less likely to be raised (or more carefully considered before they were raised) against trainee doctors, popular doctors and doctors from non-white backgrounds.”
“Locums are often perceived by their peers and managers not to be genuinely part of “the team” and so they tend to be an easier category for staff to challenge or expose. Coupled with some (not always conscious) question marks raised by other doctors about the integrity and/or capability of those who choose to work as locums. There was also some acknowledgement that locums, through no fault of their own, could be placed in situations that made them particularly vulnerable.
When issues do arise with regard to a locum there is said to be a greater likelihood of the issue being raised with the GMC specifically because it is harder for a Trust to track what is happening.
Those who qualified overseas were also perceived as more likely to have concerns raised about them. This was said to be because their training may not include an understanding of the requirements of appraisal and reflective practice. They may also be used to a much more hierarchical work culture where the doctor is not challenged or questioned by other staff (particularly junior staff or nurses).
In addition, it was admitted, by some interviewees, that medical staff probably do take a different attitude to those who have trained overseas.
Whilst it was highlighted that those who qualify outside the UK may be more likely to come under scrutiny; some interviewees in fact report that they might be encouraged to give extra consideration to reporting a colleague from a non-white background. This is because of perceptions that there may be counter accusations of racism. This possibility might make them less likely to report or even to draw back from doing so at all.
A similar point was made by the same interviewee with regard to possible accusations of sexism.
Those who are older and nearing retirement are also highlighted as being more likely to have concerns raised about them. For these doctors the habit of reflection is not as well embedded as for those who have trained and qualified in the revalidation era. Their attitude to patients and other staff is also said to be more likely to result in a higher level of complaints that need investigation.
There was a sense amongst interviewees that younger doctors were more likely to raise concerns than older generations because training around the professional duty to raise concerns has changed significantly and ‘old boys’ networks were not as prevalent.
In fact some interviewees pointed to an increasing number of cases raised by younger consultants and doctors against older consultants on the basis that standards of practice have changed and younger doctors perceive some of the older doctors’ practise as inherently outdated and unsafe.
Likeability – to some extent linked to the issues with locums and doctors from different cultural and training backgrounds there was a more general admission that concerns are more likely to be raised about doctors who just ‘don’t fit in’ with the team and culture around them.
Interviewees also recognise that human nature makes it more likely that “nice” doctors can be tolerated or excused by their immediate colleagues even if their capability might be in question at the margins, so that they might be less likely to surface with issues.
Conversely, at the extremes, those who are difficult characters to the point that they instil fear in colleagues may be able to get away with more. Some interviewees highlighted that senior consultants displaying “alpha male” type behaviour and instilling fear in subordinate team members would fall into this category and surgeons are mentioned by interviewees at more than one Trust as a likely example of this ‘type’. Other staff members can be reluctant or fearful of escalating their concerns.
Understanding employer’s referrals of doctors to the General Medical Council
5. Cultural Risk – Understand How Brexit And Other UK Trends Might Affect Complaints
As a doctor working in the UK today, you need to be aware of – and sensitive to – some important cultural trends, in order to minimise the number of unnecessary complaints, investigations and sanctions you may face during your career. A greater awareness of the possibility of different expectations, misunderstandings and miscommunications will help to reduce both the number and seriousness of referrals to the GMC.
As mentioned already, some groups of doctors are statistically more at risk of receiving complaints, of those complaints triggering full GMC investigations, and of receiving the most serious sanctions – such as suspension or erasure from the medical register.
The following trends form an important part of the UK cultural zeitgeist – and current UK medical training – and play a large part in ensuring good relationships with patients and colleagues. Understanding and incorporating these trends into your practice will limit your exposure to vexatious or minor complaints:
- General Culture Shock
- Equality and Discrimination
- Responsibility and Accountability
- Patients as Partners
- Likeability, Communication and Teamwork
- Personal Life – The ‘Always On Duty’ Doctor
- Brexit and Racism
These themes are particularly relevant for doctors who are more at risk of complaints – including doctors who have not trained recently in the UK, who have come from or qualified from outwith the UK, doctors who are older or nearing retirement, etc.
General Culture Shock
Depending on your country of origin, you may experience a large culture shock when you come to work in the UK – for example in many other cultures there are significant differences in gender equality, restricting women’s rights in terms of marriage, property, careers, driving, domestic agency and more.
A qualitative study in the Journal of the Royal Society of Medicine in 2012 found that overseas-trained doctors often started work in the UK with a very limited awareness of relevant UK cultural attitudes and Good Medical Practice (GMP), and that there was sometimes a significant cultural gap to bridge:
“There is evidence that ethical decision-making in medical practice varies across different jurisdictions and cultures, particularly on issues such as the role of the family, end-of-life decision-making, and consent/information sharing.”
“Italian doctors appear to be much less certain about disclosing a diagnosis to a patient than doctors in UK, Norway and Switzerland. A study of French and American perspectives on advance directives, found that if there was a dispute between the family and the patient wishes, the French physicians would be more likely to comply with family wishes. Russian doctors were more likely than their Swedish and German counterparts to resuscitate against the patient’s wishes in a hypothetical situation and reported less difficulty in decision-making.
A number of themes were identified from the experiences of international medical graduates (IMGs) integrating into different cultures, including
- lack of knowledge of healthcare systems and regulatory frameworks in the new country
- difficulties in communication
- differences in cultural perspectives on family life and concepts of disease
- different approaches to teaching and learning
- different models of the doctor–patient relationship
Experiences of non-UK-qualified doctors working within the UK regulatory framework: a qualitative study
This was also flagged up in a review of GMC decision making in FtP procedures carried out by University of Plymouth:
“Research by Slowther et al shows that non-UK trained doctors can be surprised by the differences between approaches to medical practice in the UK and their countries of qualification, in particular the degree of patient autonomy and the focus on shared decision-making. It is therefore vital for non-UK trained doctors that they are aware of the expectations for the behaviour of medical practitioners in the UK.”
Dr Jagroop Sihota, a British Asian GP from Coventry who helps train medical graduates taking GP exams said “It is acknowledged that there is a high failure rate for overseas doctors, but in some ways that is to be expected because they are from a different cultural background. They do find it difficult to relate to British patients.”
Doctors in the UK will be expected to abide by the UK’s culture of equality and non-discrimination and treat everyone equally – not just when dealing with patients, but also when dealing with other colleagues, and in your personal life as well.
Equality and Discrimination
The UK is fairly progressive in terms of granting equal rights to all citizens – hovering around the top 10-20 in the world – and since the introduction of the Equality Act 2010 it has been illegal to discriminate against people based on the following protected characteristics:
- Gender Reassignment
- Marriage And Civil Partnership
- Pregnancy And Maternity
- Religion Or Belief
- Sexual Orientation
Some of these protected characteristics may seem fairly obvious – for example that you cannot discriminate based on a person’s disability.
However others will be counter-intuitive to some. For example the category of ‘pregnancy and maternity’ also includes mothers who breastfeed up until 26 weeks. The category of ‘gender reassignment’ includes people who choose to live as the other gender without undergoing any medical treatment. And ‘religion or belief’ can potentially include a belief in ‘man-made climate change’.
Responsibility and Accountability
The UK is going through a period of increasing accountability – of which, GMC investigations are a prime example!
Accountability and personal responsibility are becoming an integral part of the way contemporary British life operates – in stark contrast to how things perhaps used to be.
For example, the Freedom of Information Act 2000 mandates that public authorities are obliged to publish certain pieces of information about their activities, and that members of the public are allowed to request access to them for a notional fee. This is directly relevant to doctors working in the NHS, because patients now have the right to obtain copies of their medical records, and within a very specific time frame. This means that more or less anything that you write down (or fail to write down) in your professional capacity at work in the UK – including discharge summaries, referral letters, could ultimately be obtained by the patient involved.
One of the consequences of this increase in accountability is that your actions will be subject to a higher level of scrutiny – manifested in lots of ways, including appraisal and revalidation, continuous professional development, audit, and more.
And it is not just your behaviour that you will be held accountable for – you have a professional duty to take action to intervene if you feel that a patient’s safety, dignity or medical care is being compromised. Many organisations will now have a whistleblowing policy to guide you in this situation – but the main thing is that you are deemed to have a responsibility to act to protect the patient or colleague’s safety, that you are obliged to notify a responsible manager of your concerns, and that you are subsequently legally protected from any consequences of your whistleblowing.
Patients as Partners
In the past, medicine in the UK could fairly be described as paternalistic – where patients simply presented the doctor with their problem, and then the authoritative doctor automatically diagnosed and provided the right treatment.
But over the last decade or two there has been a strong cultural shift towards ‘patients as partners’, or a more consumerist perspective. The word ‘patient’ itself has been criticised, because – deriving as it does from the Latin ‘patiens’ or ‘patior’, meaning to suffer or to bear – it paints a picture of an overly passive individual, who is defined by their condition.
Instead, the modern patient is characterised by the idea of a ‘service user’ or ‘health care user’ – who plays an active part in shared decision making about their healthcare, who can challenge medical decisions, who can request specific treatment options, whose ideas, concerns and expectations should be identified and met.
Sir Keith Pearson’s review of medical revalidation in 2017 describes this as follows:
“Patient expectations have changed and they continue to change, making the interaction a patient has with a doctor very different from that of only a few years ago. Patients are better informed, increasingly acting as consumers, expecting a dialogue with a doctor, with explanation and discussion about treatment options and risks. They look increasingly to be ‘consulted’ when it comes to their care.”
In this day and age it is also to be expected that a number of patients will bring a print-out from the internet with them to consultation – or at least to have done a bit of research beforehand. Because of the mixed quality of information available online, this means that patients can be either very well-informed, or very misinformed, compared to before – but that they may still expect you to be ready to discuss everything in detail with them, and to involve them in decisions about their treatment.
Needless to say, this is quite a significant cultural shift from the paternalistic view – but one which is increasingly expected if you work in the UK.
Likeability, Communication and Teamwork
Again, in years gone by, it was quite possible for a doctor with strong clinical skills to get away with having extremely poor personal skills.
However, you need to understand that a higher level of personal communication skills is now generally expected – and you will need to consider how you come across to patients and colleagues if you wish to avoid the risk of triggering any unnecessary complaints.
Communication has frequently been described as the bedrock of the doctor-patient relationship.
Numerous studies have confirmed that a large proportion of complaints arise not just from a clinical error, but from a breakdown in the doctor-patient relationship brought about by poor communication:
“Study participants described the perceived communication problems as follows: physicians would not listen, would not talk openly, attempted to mislead them, or did not warn them of long-term neurodevelopmental problems (in the case of newborn injury). Other communication problems cited included perceptions that doctors deserted patients or were otherwise unavailable, devalued patient or family views, delivered information poorly, or failed to understand the patient’s perspective.”
Although this study is written from an American perspective, the point is transferable – “Simply put, patients do not sue doctors they like and trust. This observation tends to hold true even when patients have experienced considerable injury as a result of a “medical mistake” or misjudgement.”
Another study from the USA suggested that an impressive 42% of medical malpractice claims reflected communication breakdowns – and that out of those communication breakdowns, nearly 40% were triggered or exacerbated by breakdowns in communication between two or more members of staff (rather than directly with the patient).
Common allegations include:
- 20% – inadequate informed consent for surgical / invasive procedures
- 15% – poor rapport / unsympathetic response to patient
- 10% – language barrier limited communication
- 6% – inadequate discharge instructions
- 5% – inadequate follow-up instructions
- 5% – patient / family education regarding risks of medications
The point is reinforced in a 2017 BMJ article, entitled “Understanding patient complaints”:
“Most complaints are secondary to poor communication. In the UK, the three most common complaints to the GMC are related to concerns with investigations and treatment, problems with communication, and a perceived lack of respect for the patient.
The GMC states that doctors must listen to patients, consider their views, and respond to their concerns with honesty. Arrangements must also be made so that patients’ language needs are met.
Effective communication is recognised as a vital attribute for healthcare professionals and not just when communicating directly with patients, but also when communicating with patients’ relatives, other healthcare professional colleagues as well as your employers. It is not unheard of for relatives to complain about a doctor’s conduct – either indirectly and on behalf of a patient, or following the death of a patient. And it is particularly common for tribunals to focus on the communication that took place during the handover to another colleague, for example at the end of your shift.
There is increasing evidence that poor communication and lack of empathy are major causes of adverse events, patient dissatisfaction, and, therefore, complaints. Challenges in communication can arise between doctors and patients from different backgrounds. Moreover, at least 25% of doctors practising in the UK don’t have English as their first language, and the language barrier in these circumstances creates an additional obstacle.”
Understanding patient complaints
Taken together with the increasing trend of multiculturalism in the UK, this means that extra care must be taken to minimise any language barriers – not just for doctors for whom English is a second language, but also for any doctor performing consultations via a translation service.
Remember as well that a large proportion of GMC complaints come from colleagues and employers, and that research suggests that doctors who are generally seen as popular and likeable may attract fewer such complaints – so it is a very sensible idea to work to improve communication and relationships wherever possible.
Stephen McCaffrey says:
It is not uncommon for a doctor legally defending your licence to have to take account of a combination of both clinical and communication problems – for example, the case might consist of a core number of allegations of malpractice, compounded with maybe another 5-10 allegations of miscommunication. In many cases it might be possible to answer these allegations all at once, with the right approach – give me a call, and I will explain what I mean.
Personal Life – The ‘Always On Duty’ Doctor
The GMC take the view that healthcare professionals have increased privileges and responsibilities and should be held to high standards of fitness to practise. Therefore incidents in your personal life can be seen to threaten public confidence in the profession and can demonstrate a sufficient lapse of medical professionalism that they merit the most serious sanctions – suspension or erasure.
The BMA provide guidance to medical students on this subject, many of whom have expressed concern that their conduct appears to be subject to a higher level of ‘scrutiny and constraint’ than other students:
“Among these responsibilities is the general requirement to avoid acting in ways that bring the profession into disrepute, thereby undermining the trust that patients have in their doctors. This requirement extends at times beyond the professional sphere to include some aspects of your personal and private life. ”
The BMA lists a set of character traits or ‘medical virtues’ that are often seen as being key to medical professionalism:
- Intellectual honesty
And it details the following examples of behaviour in your personal life that could be interpreted as a significant breach of medical professionalism:
“Criminal convictions or cautions – including theft, fraud, possession of illegal substances, physical violence or abuse
Drug or alcohol abuse – including drunk driving and alcohol consumption that affects clinical practice
Aggressive, violent or threatening behaviour – including bullying
Persistently inappropriate attitudes or behaviour – including lack of commitment, non-attendance, poor communication and failure to follow educational advice
Cheating or plagiarising
Dishonesty or fraud – including falsifying research, financial fraud and misrepresentation of qualifications or in CVs
Unprofessional behaviour – including breaches of confidentiality, failure to respect professional boundaries, persistent rudeness to patients, colleagues or others
Health and insight – including failure to seek appropriate medical support or to follow medical advice”
One particular area of concern is your use of social media, such as Twitter, Facebook, YouTube, forums and blogs – in particular you must be careful to:
- maintain patient confidentiality
- maintain professional boundaries with patients
- respect colleagues
- identify yourself by name, if you identify yourself as a doctor
- declare any conflict of interest, financial or commercial interests
You need to also remember that you will not have control over information that is put online – it is very easy for something meant as a private comment to end up plastered all over the internet.
This point is emphasised in a post on the GMC blog:
“The Human Rights Act grants us the right to a private life, but when our comments and images are posted online they have a permanence and accessibility to others that they would never have had if spoken to a colleague in private, and this brings these posts very much into the public sphere.”
“A good rule of thumb is to always consider the analogue situation. Would you be confident speaking the content of your post to a public lecture theatre? Would you hang that photo you have as your profile picture in the reception of your practice or ward?”
Doctors and digital footprints
Of the 119 MPTS hearings that ended in suspension or erasure in 2014, 8% of the cases came from the GMC – including cases where doctors were investigated following a media story – so you should be very wary about the possibility of making the headlines.
Because of the subjective nature of medical professionalism, the best advice here is to be conservative in your conduct:
“There are no hard and fast rules here. We advise however that you should take a cautious approach to any behaviour that may be thought to undermine trust in the medical profession. ”
Brexit and Racism
It is impossible to spend much time in Britain without hearing a discussion of Brexit, as well as the commonly expressed viewpoint that a combination of Brexit, sweeping austerity measures, and hostile immigration policies has ‘made Britain more racist’.
Tendayi Achiume is a professor of law at University of California, who was appointed the UN’s special rapporteur on racism and intolerance in 2017. At the end of her recent visit to the UK Professor Achiume lent her support to this claim, highlighting “a Brexit-related growth in ‘explicit racial, ethnic and religious intolerance’, including extreme views that have gained ground in mainstream political parties of the left and the right.”
This is not a completely new phenomenon, as many overseas doctors have commented on the racist abuse they have received while working in the NHS:
“All non-white staff faced overt racial abuse, but we just had to cope.”
The NHS owes doctors who trained abroad an apology for racism, Dr Rajgopalan Menon
There has been an overall trend of decreasing racism over the last few decades, however if you are an overseas doctor you should be aware that the UK is currently experiencing something of a groundswell of nationalist and racist sentiment.
Mr Ashok Pathak MBE summarises the situation well, while providing some useful advice:
“Mr Pathak said that while he felt society had generally become more open and tolerant over the course of his career, continuing pressures with the health service and political and social tensions stirred up by Brexit could jeopardise this.
‘My advice [to doctors] is that if these situations occur, they should be calm, professional, not be abusive and try to reassure the patient. They should then go and report the matter straight away to their immediate superior and to their trust’s equality and diversity team.'”
6. Administrative Erasure – And Other Common Administrative and Technical Pitfalls for the Unwary
There are a number of basic administrative tasks that you absolutely cannot risk forgetting to take care of – otherwise you may unintentionally be guilty of practising illegally, with all the consequences that may bring. While these are unlikely to trigger a complaint or investigation in themselves, they may significantly compound your situation if you are subject to any regulatory action. With so much else to remember it is surprisingly easy to overlook one of these requirements, so try and automate them wherever possible.
Doctors have to keep a lot of plates spinning, and in the middle of all of this it is very easy to forget to complete and return a form, to neglect to update an agency about your recent change of address, or to forget that you have switched banks or your credit card has expired.
Paperwork hardly seems a matter of life or death when compared to clinical elements of your job – but it can have a significant impact on your career if you don’t make sure that you properly dot the i’s and cross the t’s.
In the event of a GMC investigation, something as simple as a letter or cheque getting lost in the post could go on to have very serious ramifications if it meant that you were practising medicine without indemnity.
Failure to acknowledge the importance of meeting these basic requirements when challenged during an investigation would be very likely to exacerbate your situation further.
And it would potentially lead to the strongest possible sanctions if a tribunal suspected that you had deliberately and knowingly failed to comply with one of these statutory requirements – since dishonesty is seen as such a barrier to remediation.
For example, a consultant gynaecologist was recently struck off for knowingly practising without indemnity for 53 months – despite his lawyer’s defence of ‘administrative sloppiness’. The tribunal decision reflected the importance of the element of dishonesty in this case:
“You knew that you did not have indemnity cover, but you continued to practise without it, and you have yet to acknowledge this… In addition, you have not acknowledged that your failure to hold indemnity cover placed private patients at risk. Given your lack of insight into your dishonest conduct, the tribunal is not satisfied that you would not act dishonestly again.”
To help you avoid this scenario, here is a shortlist of commonly overlooked – but essential – tasks that you may inadvertently forget:
Pay The GMC Annual Retention Fee
You can only practise medicine in the UK if you hold a valid current registration with the GMC – so failure to pay your GMC fee would in effect mean that you were practising without a licence, which is illegal under the terms of the Medical Act.
The consequences of an inadvertent registration lapse can potentially be very significant indeed.
Depending on your contract, a valid GMC licence is likely to be a precondition of employment – meaning that your job may be threatened.
Depending on the terms of your indemnity, your medical insurance cover may be invalidated – meaning that you may not be legally covered in the case of an adverse incident:
“Will I be covered by medical indemnity if I practice without a licence?
This is a question for your defence organisation, but there can be no legitimate expectation of indemnity if you continue to practice medicine without a licence to practice.”
And if the GMC does not receive your annual retention, this will ultimately result in your automatic removal from the register – a process called ‘administrative erasure’.
To help avoid this, the GMC starts sending out payment reminders about 31 days before the fee is due. And according to the PSA, the GMC will also follow-up on any returned mail that might indicate a change of address:
“Some regulators (including the GMC and HCPC) also actively follow up returned mail – which is a practical and simple way of establishing changes of address.”
PSA statistics show that around 1.1% of doctors are removed from the medical register each year because of non-payment or a refusal to engage with the renewal process. However the GMC require a formal application and associated processing fee for voluntary removal from the register – so it is possible that some of these doctors are simply retiring, moving overseas, etc and choosing not to engage with the GMC processes.
However it still makes sense to take advantage of the GMC’s available payment options and set up a recurring Direct Debit payment to automatically cover your registration fees.
You should make a note to update the GMC’s records whenever you move house or switch bank accounts.
And you should consider signing up online to the GMC’s web portal – this will allow you to change your details more easily, check your current status, confirm payment details and more.
Performers List Membership
There are three national performers lists operated by NHS England – one for medical, dental and performers.
These lists “provide an extra layer of reassurance for the public that GPs, Dentists and Opticians practising in the NHS are suitably qualified, have up to date training, have appropriate English language skills and have passed other relevant checks such as with the Disclosure and Barring Service (DBS) and the NHS Litigation Authority.”
As with the GMC registration, admission to the relevant performers list is a legal requirement for all doctors in order to practise medicine in the UK (except for a couple of very specific points in certain career transitions).
The performers list application process varies according to region within the UK, and you must be registered in the most appropriate one for the purposes of appraisal and revalidation:
NB – although the process in Scotland has recently been streamlined, you still need to apply via the most appropriate individual NHS Scotland Health Board (eg Greater Glasgow and Clyde, Lanarkshire, Grampian, etc).
In many cases your employer will make sure that you are registered correctly – however this doesn’t apply if you are a self-employed or locum doctor, and it is ultimately your responsibility in any case. Ignorance is no excuse.
Because you will be working with vulnerable groups, you will normally be required to take out membership of a criminal records certification scheme at the same time as you apply to join a performers list – again this varies between the different nations of the UK:
- England and Wales – Disclosure and Barring Service (previously Criminal Records Bureau and Independent Safeguarding Authority)
- Northern Ireland – Access NI
- Scotland – Disclosure Scotland
Occupational Health Records
Doctors are required to provide comprehensive records demonstrating proof of all relevant immunisations, as set out in section 2 of GMP:
“You should be immunised against common serious communicable diseases (unless otherwise contraindicated).
The list of immunisation records required may vary depending on the nature of the work that you carry out, but at a minimum it will include routine immunisations:
- Measles, mumps and rubella (MMR)
And depending on your circumstances you may also require:
- BCG (Bacillus Calmette-Guérin) – for working with TB patients
- Hepatitis B – for working with patients’ blood, or with other risk of injury
- Chickenpox (Varicella) – if you cannot provide a definite history or blood test as proof
Particularly if you are self-employed or if your career path means that you are likely to change employers regularly, the best solution is to maintain a digital file containing up to date copies of all of your occupational health records.
The main threat to your GMC licence here is that failing to provide required records or actively concealing a positive result risks patient safety and may demonstrate dishonesty – so make sure that all of your occupational health checks are correct and up to date.
It is by now well understood that doctors need to ensure that you are indemnified in order to practise medicine in the UK – originally because it was a part of GMP, and more recently when it was given a stronger statutory footing.
However you really need to ensure that your indemnity is adequate and appropriate – which will depend on your precise circumstances.
The GMC does not really elaborate on what constitutes ‘adequate and appropriate’ – suggesting instead you speak to a medical defence organisation or other insurer:
“The law says appropriate cover is cover against liabilities that may be incurred in practising as a doctor having regard to the nature and extent of the risks of practising as such. What constitutes adequate and appropriate is a complex area and you need insurance or indemnity that covers the full scope of your practice.”
Patients today are increasingly aware of their rights, and doctors’ responsibilities – and in spite of restrictions on ‘no win no fee’ legal services there are still no shortage of ‘ambulance chasing’ lawyers who specialise in medical malpractice cases.
The expectation is that doctors should be covered for up to around £10 million, and because of the increase in medical litigation in the UK the cost of indemnity has risen steeply in recent years – particularly for certain groups of doctors.
For example, research from the Medical Protection Society (MPS) suggested that a full-time GP is twice as likely to receive a claim from their work in 2015, when compared to 2008.
If you are employed by an NHS trust or board or Health and Social Care trust, even on a locum basis, you should be provided with indemnity by a clinical negligence scheme.
However you should familiarise yourself with the specific details of your cover – for instance to clarify whether it covers any of the following ‘edge cases’:
- ‘Good Samaritan’ acts – emergency care outwith your workplace
- ‘Good neighbour’ acts – unpaid voluntary work
- writing reports for third parties – including insurance reports and police reports
- moonlighting – additional non-contracted shifts that violate working time regulations
- legal support for criminal investigations
- legal support for GMC complaints, disciplinary or regulatory action
- legal support for tribunal decisions referred by the GMC or PSA to the High Court
- support for giving evidence at inquests – eg coroner’s inquests
- support for appearing in front of the media in relation to the above
Another very significant question you should ask yourself is – in the even of a claim, would the indemnity provider be more concerned about my personal reputation, or that of the organisation paying for it? This particularly applies to situations where your own interests come into conflict with those of the health board or trust who employs you.
In fact, partly because of the obvious limits on this type of cover, a number of professional medical bodies advise their members to take out a personal indemnity policy – in addition to any general policy that may be provided by your employer:
“The Junior Doctors Committee of the BMA and RCOG National Trainees Committee strongly recommend that all UK junior doctors in medical practice secure independent, individual medico-legal cover.”
“If you are relying on crown indemnity you may also want to consider additional insurance by being a member of a dental defence organisation for those aspects not covered by crown indemnity.”
If you are arranging your own cover, you will need to make sure that your indemnity covers:
- the amount of work that you currently do
- the type of work that you currently do – including out of hours care
- the required level of cover – eg £10 million
- run off period – previous patients must be covered even after you stop paying in
Indemnity policies differ from typical insurance policies in the key respect that they are provided on an ‘occurrence-based’ basis, rather than a ‘claims-based’ basis – this means that they cover any claims made about your actions during the period you were paying for cover. In contrast, insurance policies generally stop providing cover as soon as you stop paying the insurance premium, unless there is a small defined period of ‘run-off cover’.
The run-off period in many ‘insurance’ policies is insufficient when compared to the ‘indemnity’ policies offered by the main Medical Defence organisations – especially in certain clinical areas. For example, it is not uncommon for claims involving babies or children to arise after a delay of up to 20 years:
“There can be a long lag between the point at which clinical negligence occurs, and when damages are eventually paid to the recipient. This gap is on average 5-8 years, but in some cases involving children it can take 10-20 years for the extent of the damage to become clear.”
You may also need to take into account other issues:
- self-employed and GPs – you will need to arrange your own cover
- private work – you may need separate cover even if you are working in NHS premises
- EU policies – you will need to make sure your EU-wide policy is adequate
- sufficient value – likely compensation payouts will vary depending on your clinical area
The three main providers of indemnity are all non-profit mutuals – meaning that the amount they charge members for indemnity directly reflects the amount paid out in compensation:
- Medical Protection Society (MPS)
- Medical Defence Union (MDU)
- Medical and Dental Defence Union of Scotland (MDDUS)
In response to spiralling indemnity costs, the UK government has announced plans to introduce a state-backed indemnity solution – although this has not yet been launched.
Whether or not you end up deciding to rely on NHS indemnity or arrange your own provision – it is essential that you take the time to choose appropriate cover, and that you review your arrangements at regular intervals and whenever the scope of your practice changes.
Other Mandatory Training
Depending on your role, you may be required to keep your skills up to date – and be able to evidence this with the appropriate certification – in some of the following areas:
- life support training (appropriate to specialism – eg Basic, Advanced, Paediatric)
- child safeguarding
- safeguarding of vulnerable adults
- infection control
- fire safety
- manual handling
Again, your employer may provide appropriate training and annual refreshers – however it is still very much your responsibility to find out about and make sure that you meet any such statutory requirements.
If you are a locum or are self-employed it will obviously be your responsibility to organise this. However if as an employee you are involved in a ‘never event’, such as an avoidable death, you will need to be able to prove that your skills were up-to-date – and pointing out that your employer didn’t provide the required training will not discharge your personal responsibility.
7. Appraisal and Revalidation – The Dangers of Non-Engagement
The GMC’s current revalidation system has been widely (and justifiably) criticised, leading to a tendency for some doctors to treat it as a tick-box exercise, rather than fully engaging with it – however there still remains a legal obligation on doctors to comply fully with the process.
Certain groups of doctors are more likely to struggle with meeting the requirements of appraisal and revalidation. Recent high-profile legal decisions have sparked fears surrounding the risk of self-incriminating through written self-reflection. And there is evidence that tribunals are increasingly focusing on certain elements of the appraisal process – for instance ‘scattergun’ CPD. Protect your licence by getting a better understanding of the appraisal and revalidation process.
Revalidation – the process by which the GMC hopes to encourage incremental improvements in quality by regularly checking doctors against the established professional standards such as Good Medical Practice (GMP) – lies right at the heart of the GMC’s two main concerns – patient safety and the public perception of the medical profession.
However a recent study commissioned by the GMC found that – despite running for five years – revalidation was still confusing to many doctors participating in the system:
“Many doctors and, as importantly, patients remain unclear about what revalidation is designed to achieve. Many in the profession believe that the main aim of revalidation is to identify ‘bad doctors’ and can be failed, as ultimately successful involvement in revalidation activities is linked to a judgement about FTP.”
It also reported some fairly stark conclusions about the modest level of outcomes actually delivered by the revalidation process so far:
“A significant minority of doctors reported changing an aspect of their clinical practice, professional behaviour or learning activities as a result of their most recent appraisal.
Overwhelmingly these changes related to the focus or quantity of their continuing professional development (CPD) activities, though changes have occurred across the domains of Good Medical Practice (GMP).
However, some doctors identified potentially negative impacts on practice or for professional autonomy.
Revalidation, through appraisal, provides a means to document practice but may not necessarily improve professional practice.”
And most worryingly, doctors are likely to interpret the current process as a largely ‘tick-box’ exercise – made worse by IT systems that contain literal boxes that need to be ticked:
“Many doctors see appraisal as now focused on completing tasks to achieve documentary evidence of their adequate performance to maintain their licence. This has important implications … for doctors, with appraisal moving to a more bureaucratic tick-box exercise where reflection is simply documented in line with requirements, but not translated into active reflective practice.”
Finally, without a clear output in terms of improved practice, many doctors feel that the time and resources spent on complying with appraisal and revalidation could be better spent elsewhere:
“Appraisal means that I must keep collecting evidence of professional development. It is a sacrifice to the god of revalidation – because only when written down is something proved to have happened… Appraisal is a false god. It is a waste of time and a misuse of resources… If the 10 minutes it takes me to fill one in is the average, then health professionals spend 21 500 hours a year ticking boxes rating colleagues. Where is the evidence of value? What work – or what life enhancing, burnout reducing, play away from work – is not getting done instead? ”
To understand why revalidation has come to be seen as a confusing, stressful and time-consuming paper exercise, it is important to first understand the source of confusion over its precise role.
The Role Of Revalidation
The current GMC revalidation process was launched back in 2012, after an enormously long gestation period dating back to the 1970s, when the Merrison Committee suggested doctors would benefit from a period ‘relicensure’ – the logic being that it was perhaps naive to think that doctors would automatically remain competent and up-to-date in their skills all the way from graduation until retirement.
However it wasn’t until around the time of a series of high-profile scandals in the NHS around the turn of the century that impetus was reached to finally define and implement a system of revalidation.
Various models for revalidation were proposed over the years, though a number of characteristics remained fairly constant:
- continuing professional development
- 360 degree feedback
- reflective practice
- annual appraisal
- five-yearly revalidation
Other elements were considered but ultimately left out of the revalidation process:
- regular tests of medical knowledge
- involvement of lay-people in revalidation recommendations
- automatic revalidation after five successful annual appraisals
Interestingly, the majority of patients actually assumed that some kind of revalidation system was already in place:
“It is noteworthy that research carried out in 2006 found that almost half of patients when asked thought that doctors were already subject to regular assessments, with one in five believing that this happened annually. The introduction of revalidation was, therefore, in part, catching up with the public’s established expectation.”
“Most patients think that there is a system in place already for checking that doctors are competent and up to date. They believe that, as in most jobs, and certainly those where there is a safety critical component; doctors are appraised and given feedback on their professional performance.”
In 2012, a few months before the introduction of revalidation, the chief executive of the GMC made the argument linking revalidation, self-reflection, continuous improvement and ‘first class care’:
“Over time we believe revalidation will identify problems in some doctors’ practice earlier, and more widely that it will encourage self-reflection. That must be good for both patients and doctors because it will help to improve the care patients receive.
Revalidation is about underpinning the trust patients have in their doctor. Once it is fully implemented it means that patients will know that the doctor who treats them will have demonstrated on an ongoing basis that he or she is competent and fit to practise in that area of medicine. This is good for the profession but above all it must be good for patients.”
There is, however, an enduringly popular misconception that the revalidation process was put in place as a direct result of the Shipman Enquiry – with the aim of ‘preventing another Shipman’.
Harold Shipman was one of history’s most prolific serial killers, convicted of 15 murders in 2000 – although the Shipman Enquiry concluded that the true figure was likely to be at least 200.
Shipman remains the only doctor to be convicted of murder in the UK, and because of the high profile nature of the case, the GMC’s plans to introduce revalidation were subject to a huge amount of scrutiny.
In a ‘bruising’ report released in 2004, appeal court judge Dame Janet Smith largely found the GMC not at fault for their handling of Shipman, but gave very strong criticism of the organisation in general – saying of their ‘weak and unsatisfactory’ proposed revalidation processes:
“Revalidation could make a major contribution to the identification of incompetent and poorly performing doctors and thus to patient safety. Unfortunately, the present proposals for the revalidation of GPs do not provide an evaluation of fitness to practise and cannot achieve this important objective… The bottom line is that a doctor will fail to be revalidated only of his/her professional performance is ‘remarkably’ poor. I do not think that is a satisfactory state of affairs.”
Revalidation Is Not An MOT Test
The rationale behind Dame Janet’s criticism of the GMC’s proposals was summed up by Aneez Esmail, Professor of General Practice in 2005:
“Some senior members of the GMC have informally but publicly given the impression that revalidation is a sort of MOT test for doctors. The MOT is a test of the roadworthiness of an individual vehicle. Various features of the vehicle are examined against specific standards. The vehicle must reach all those standards. If it fails any part of the test, it fails the whole test. Revalidation does not, as currently proposed, incorporate any detailed standards with thresholds by which it is possible to pass or fail. The only threshold by which the doctor can fail is that of being unfit to practise, yet the mechanism by which this is to be determined is totally inadequate. There are no clear standards by which a doctor’s fitness to practise can be determined, no objective test, and no independent scrutiny of that test. It is therefore unsurprising that Dame Janet was so scathing about the proposals.”
And this idea of ‘revalidation as MOT test’ has been latched onto by numerous media outlets – with the very low numbers of doctors who ‘fail’ the test being cited as evidence that the revalidation system does not work:
“The General Medical Council (GMC) introduced a national system of ‘MOT’ checks on doctors in 2012 in the wake of a series of scandals, including the deaths of 250 patients at the hands of serial killer Harold Shipman.
But new figures show that less than one per cent of family doctors have been put through retraining or had their licences withdrawn since the scheme came in.”
However – in spite of what many doctors, patients and journalists may think – the main focus of the revalidation process is not on identifying poor behaviour and poor performance in a post-Shipman world:
“I also want to be clear on what revalidation does not do. Revalidation does not exist solely to identify poor performance… . It can and should deal with poor behaviour and performance. However, contrary to a commonly repeated myth, it was never intended to ‘catch another Shipman’.”
The chief executive of the GMC reaffirmed this idea in an interview in 2015:
“For the vast majority of doctors, as these figures show, revalidation does not lead to them losing their medical licence. It is designed to help both the individual doctor and their employers identify what is going well and what areas of their practice can be improved. It also helps reassure their patients that they are being treated safely.”
And again this is clarified in the official GMC guidance for revalidation:
“Revalidation is not a way to raise or address concerns about a doctor’s practice. Concerns should be raised when they arise, through relevant local governance processes and not through appraisal. Where concerns are serious they should be referred to us through our existing fitness to practise processes.”
Criticisms of Revalidation
Many of the criticisms of the current revalidation system are set out in this recent article in Pulse:
- general sense of dread
- last minute panic to make sure you can tick all the boxes
- 55 hours per year lost to each appraisal
- very few doctors have concerns flagged as a result
- feel unfairly targeted for excessive professional scrutiny
- nearly 60% of doctors say no changes to clinical practice, professional behaviour or learning activities as a result
These are all legitimate concerns, but one of the most damning allegations is the lack of concrete evidence that the revalidation system has any proven benefit at all:
“Indeed, it is disturbing that the regulator of a profession exhorted to follow the evidence base has no way of proving its methods offer any benefits at all to patients.”
This point was made again in 2018 in a Pulse article pointing out that despite GPs spending an average of 55 hours each year on the revalidation process – there is little or no evidence of the supposed benefits:
“But neither the GMC or the Department of Health were able to point to any evidence that revalidation has reduced avoidable deaths, harm caused by doctor or litigation costs, as claimed before revalidation rolled out.”
In fact, that was also the finding of the GMC’s own report into the impact of revalidation:
“Revalidation, through appraisal, provides a means to document practice but may not necessarily improve professional practice.”
And the sense of frustration and futility is summed up in comments made in by the GPC contracts and regulations subcommittee chair to Pulse magazine:
“It really does suggest that the incredibly burdensome process, and all the extra work and stress that it puts on GPs and the extra time involved in the appraisal process, is pretty much a waste of time.”
Another very significant area of concern is the subjective nature of the assessment process:
“Data shows that all kinds of personal quirks and biases, both conscious and not, influence our appraisals of other people… Studies suggest that more than half of a given performance rating has to do with the traits of the person conducting the evaluation, not of the person being rated.”
This subjective factor in the act of appraisal – the so called Idiosyncratic Rater Effect – has been demonstrated to exist in a number of other areas of employment:
“Over the last fifteen years a significant body of research has demonstrated that each of us is a disturbingly unreliable rater of other people’s performance. The effect that ruins our ability to rate others has a name: the Idiosyncratic Rater Effect… Bottom line: when we look at a rating we think it reveals something about the ratee, but it doesn’t, not really. Instead it reveals a lot about the rater.”
Harvard Business Review
And as you might by now expect, there is already some evidence of possible bias in the distribution of Responsible Officers making recommendations of deferral instead of approval:
“Deferral of revalidation is likelier among younger doctors, women, and doctors from black and minority ethnic backgrounds, a major impact study has found.”
“Possible evidence of differential outcomes between white and other ethnic groups and between UK and some non-UK trained doctors in deferral recommendations requires further exploration.”
There are also regional differences between the different nations of the UK:
“Doctors working in Northern Ireland, Scotland and Wales had lower odds of being deferred than those working in England.”
Interestingly, in recent years there has been something of a movement away from annual performance reviews in certain industries. Frequently cited factors include the high cost, the fact that everyone hates the experience, and the limited evidence of a positive outcome – as summed up in the New Yorker in 2015:
“Lately, though, the annual performance review has been falling out of favor in some quarters. Microsoft and Gap are among several companies that have reformed their evaluation processes in recent years. Consulting firm Accenture… announced that it is getting rid of annual evaluations for its three hundred and thirty thousand employees, replacing the process with a system where managers will give feedback on a more regular basis. Accenture’s C.E.O., Pierre Nanterme, told the Washington Post that the existing evaluations are cumbersome and expensive. Plus, he added, ‘the outcome is not great.’ ”
“In 2012, Adobe replaced its evaluations, after its senior vice-president of people and places, Donna Morris, concluded that employees hated them and they weren’t very useful. ”
Finally, there is also the issue that older doctors and semi-retired doctors could bring forward their retirement in order to avoid the challenges they face engaging with revalidation – potentially exacerbating the current workforce crisis.
Data from the first five years of revalidation suggest that well over 2000 doctors in the UK retired early between 2012 and 2018 because of the perceived negative impact of revalidation:
“Of the 45,401 doctors who relinquished their licence between 3 December 2012 and 31 March 2018, 5% gave revalidation as their reason.”
As part-time GP locum Adrienne Garner put it:
“My colleagues tell me that I just have to ‘jump through the hoops’. I am fitter than average and still enjoy racing rafts and playing tennis but at this stage in my life I don’t want to learn how to jump through hoops.”
Groups That May Particularly Struggle With Revalidation
Certain groups of doctors struggle more than others with revalidation – due in part to the fact that the process was mostly designed to reflect the circumstances of full-time, NHS-employed doctors.
“However, revalidation as a group of activities was primarily developed for doctors as employees, idealised as working full time in the NHS. This was understandable in order to achieve a policy launch in the face of protracted opposition. It is therefore perhaps unsurprising that outside of established governance systems, such as NHS Trusts and GP practices, revalidation is yet to be fully embedded.”
Situations where doctors might struggle to easily meet the requirements of the revalidation process include:
- private practice
- working partly overseas
- portfolio careers, including time away from direct patient care
- academia, including Universities and Research Institutes
- career breaks, including maternity, prolonged sick leave or sabbatical
Locum doctors and those in private practice in particular may struggle with identifying your Designated Body (DB) and Responsible Officer (RO), in which case you may wish to consider contacting someone from the GMC’s Suitable Person list to make revalidation recommendations on your behalf:
And doctors anticipating a career breaks can delay or potentially even miss an appraisal if pre-discussed with your RO and if it is for a ‘valid reason’ – for example maternity or prolonged sick leave. However if you miss two full years worth of appraisal it is likely that you may need to take part in refresher training upon your return.
The GMC provides a number of other resources to help with revalidation, including information targeted at some of these particular groups of doctors:
How To Cope With Appraisal And Revalidation
Familiarise Yourself With The Key GMC Documentation
There are a number of key GMC documents that you need to be familiar with:
The over-arching legal requirements for appraisal and revalidation are set out by the GMC in Revalidation Guidance for Doctors:
- sufficiently engage with the revalidation process, to demonstrate that you practise in line with the principles and values set out in Good medical practice
- identify your designated body and responsible officer, or suitable person. Or tell us if you don’t have one
- collect suitable information from the whole of your practice in line with our supporting information guidance
- have an annual appraisal (or engage fully with your training programme if you are a doctor in training) which covers your whole scope of practice
- reflect on, and discuss with your appraiser, the supporting information you have collected
- if you do not have a responsible officer or suitable person, send us an annual return with the required supporting evidence and meet the required standard in a revalidation assessment
- send us any information we ask for about your revalidation
However many doctors have found the requirement for supporting information to be confusing and time-consuming. There has been a lack of clarity of what information is mandatory for appraisal and revalidation, and what information is required by employers, royal colleges or faculties. Responding to this the GMC has recently issued fresh guidance to help doctors to provide appropriate supporting information across the six main categories:
- continuing professional development
- quality improvement activity
- significant events
- feedback from patients or those to whom you provide medical services
- feedback from colleagues
- compliments and complaints
Finally, a framework is available which sets out the broad areas that should be covered in medical appraisal, and which simplifies the full advice of Good Medical Practice into four domains:
- knowledge, skills and performance
- safety and quality
- communication, partnership and teamwork
- maintaining trust
Focus On Your Own Professional Development
A recent survey suggests that the main benefit to doctors of going through the appraisal process was in terms of a focus on professional development and reflection – so try and focus your attention on this instead of the box-ticking aspects:
“Many survey participants identified beneficial aspects of participation in appraisal, such as the opportunity to reflect on their work, discuss career development and set future objectives… Participants’ positive comments focused largely on the professional development elements of
appraisal with an appreciation for the opportunity to engage in a reflective discussion.”
But Exercise Caution With Written Self-Reflection
Although appraisal is intended to be a supportive learning environment, rather than an MOT test, concerns over the confidentiality of written self-reflection arising from the Dr Bawa-Garba case have led some doctors to advocate a much more conservative approach to providing written reflection.
Although the self-reflective information Dr Bawa-Garba provided via the appraisal e-portfolio system was not directly used in her court case, since your appraisal comments do not have legal protection they could in principle be used against you in court – meaning that you may wish to be cautious in what you write to avoid self-incrimination.
In fact, a recent ‘rapid review’ into Gross Medical Negligence and healthcare by Sir Norman Williams rejected the idea of introducing legal privilege for doctors’ reflective notes, saying:
“Where any evidence is material to a case, it is right that it should be considered… To provide an exemption for reflective practice material would rightly cause concern that healthcare professionals are above the law.”
Remember also that your appraiser – like any healthcare professional – is already required to notify the GMC if they have serious concerns about your fitness to practise.
A recent poll of GPs showed that 70% believe it is unsafe to record written reflection, and that 60% have changed the way they record reflective notes as a direct result of the Bawa-Garba case:
However, by refusing to engage with the process of reflection you risk disciplinary action from the GMC:
Recognising this, and in light of the fact that reflection is still a legal requirement of revalidation, the GMC is currently putting together updated guidance on how to avoid reflective notes being used against you.
Meaningful (Non-Scattergun) CPD
It is no surprise that many doctors are tempted to approach the CPD requirement of revalidation as a ‘tick-box’ exercise. However this could be a serious mistake – as there is growing evidence that tribunals are clamping down on inadequate, irrelevant and low-quality CPD.
One particular criticism has been levelled at multiple doctors in recent MPTS decisions – that of ‘scattergun’ CPD:
“In respect of your deficient professional performance, Mr Jackson submitted that you lacked insight and that this was demonstrated by the ‘scattergun’ approach you had taken to CPD”
“Additionally, the tribunal is concerned that you have not provided sufficient information to demonstrate that your knowledge and skills have been kept up to date during your period of suspension. The tribunal accepts that you have taken steps to keep your knowledge current through reading medical journals and articles online, although it notes that you yourself describe your approach to selecting this material as ‘scattergun’. The tribunal is concerned by the absence of evidence supporting validation of your CPD, for example certificates of any courses attended. It also would have been reassured by evidence that you had taken a more targeted and systematic approach toward maintaining your skills…”
The bottom line is that the GMC expect that you should demonstrate a deliberate approach to your choice of CPD, and that the amount and type of your CPD should correlate closely to your practice.
It is also imperative that you can demonstrate reflection in addition to your basic CPD requirements – simply handing in a bunch of certificates of courses that you have attended will not be regarded as sufficient without (brief) accompanying notes explaining what you learned and how you changed your practice as a result:
“The tribunal is also concerned that you have not demonstrated any reflection on your learning. The tribunal recognises that opportunities for CPD are more limited when you are not in active clinical practice, but reflection on what you have learned and evidence of objective validation of your learning was not apparent.”
Hot Topics – Common Focal Points For GMC Investigations
As you know, GMC Investigations can examine your fitness to practise across all areas of medical professionalism, and sanctions can be imposed if the panel feel that patient safety or the reputation of the profession may be at risk. However certain areas of medical practice are particularly prevalent during GMC investigations, and because of a lack of familiarity with the expected standards many tribunals show doctors to be deficient in these specific areas. Our guide will point out these common traps for the unwary and help you to identify where you might need to brush up your skills – and could make the difference if you ever find yourself in front of a tribunal.
A number of key areas of focus keeping coming up at tribunals, and if your clinical practice is seen as deficient in these particular areas you potentially risk attracting significantly more serious sanctions.
These areas are:
- Good Medical Practice
- Confidentiality (and Data Protection)
The next section of this guide will look at each of these areas in turn, starting with the GMC’s best-known (and least-read) publication – Good Medical Practice.
8. Good Medical Practice – Yes, You Do Have To Actually Read It
Good Medical Practice (GMP) is the key document in which the GMC sets out your ethical duties as a doctor, and it is used as a benchmark in virtually all tribunal decisions – but when was the last time you actually read it?
GMC guidance published to help tribunal members determine appropriate sanctions outlines the importance of GMP (and related standards and guidance) – particularly as a way of ensuring that doctors from different backgrounds can learn what is expected of them by the GMC:
“Many doctors joining the medical register have previously worked, lived or were educated overseas, where different professional standards and social, ethnic or cultural norms may apply. Doctors are expected to familiarise themselves with the standards and ethical guidance that apply to practising in the UK before taking up employment, although experience of working as a doctor in the UK plays a key role in their development.”
When listing factors that help to determine the seriousness of sanctions that would be appropriate, the top item on the list is:
“The extent to which the doctor departed from the principles of Good medical practice”
And when listing factors that suggest erasure would be required, the top item is again specifically related to GMP:
“A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor.”
But despite its importance, many doctors have only an arms-length familiarity with the contents of GMP:
“I’d be surprised if the majority of new foundation doctors had read Good medical practice (GMP). But it is an essential guide to what’s really important and it underpins everything we do (as well as reminding us why we do it).”
GMC clinical fellow Dr Muj Husain
Make the leap: medical student to foundation doctor
The Appraiser’s Handbook, written back in 2006, makes the same point:
“Prior to the advent of appraisal, it is unlikely that many had read Good Medical Practice.”
Good Medical Practice is a short but essential piece of reading – it won’t take long, so do your GMC licence a favour and make time for it tonight.
9. Consent and Confidentiality Are Fundamental
Consent and Confidentiality are considered two of the most fundamental principles for doctors to be familiar with and follow, because they occur so frequently and because they exist in virtually all areas of medical practice. However a significant proportion of MPTS cases unearth situations where doctors have failed to obtain valid informed consent before carrying out a procedure, or they have knowingly or inadvertently breached patient confidentiality.
It is particularly worthwhile reviewing these fundamental topics because tribunals will view any substantial or repeated breach of something so fundamental as a very serious departure from the requirements of Good medical practice – and this will be reflected in the level of sanctions imposed.
You can see this in a number of recent MPTS decisions – for example you should not the wording in this recent case of a doctor who improperly accessed approximately 350 Electronic Patient Records:
“The Tribunal considers that your actions in so doing amounted to serious misconduct, because all patients should be able to trust that their private medical data will not be accessed by anyone, including medical staff, without proper authority and consent being provided.”
Confidentiality (and Data Protection)
Medical confidentiality requires doctors to strike the right balance between competing ethical and legal interests – trust and confidentiality are an essential foundation of the doctor-patient relationship, but at the same time the law requires information sharing in specific circumstances (for example where patient safety may be at risk).
GMC guidance emphasises this dual nature:
“Confidentiality is an important legal and ethical duty but it is not absolute.”
Confidentiality is often confused with data protection, because there are many situations in modern healthcare where they occur together. However there is an important difference – confidentiality relates to the right of patients to expect medical professionals not to divulge personal information they shared in confidence as part of their care, while data protection relates to the legal responsibilities placed on those who control and process sensitive personal data.
The law on the use and disclosure of sensitive information, such as patient medical records, is very complex – and to make things worse there are variations in data protection law across the four countries of the UK, plus you must also understand the recently introduced EU General Data Protection Regulation (GDPR).
Some general principles of medical confidentiality and data protection that may be raised at tribunals are:
- personal medical data (data) includes all information you hold in connection with a patient, both administrative and clinical data should be held securely (protecting against improper access, loss or accidental disclosure, including for example not discussing a patient where you could be overheard)
- data should be accurate, up-to-date and relevant
- data should be kept only for as long as necessary
- you should support patients to manage how their data is used, in accordance with their legal rights
- valid consent should generally be sought before any disclosure (ie adults who are deemed to be competent, and who have been made aware of what data will be disclosed, to whom, and for what purpose)
- implied consent is sufficient for sharing data with the team providing healthcare, as well as for the purposes of local clinical audits
- consent is not necessary if you are obliged by law to disclose (eg notifying of infectious diseases that may represent a serious public health risk)
- consent is not necessary if disclosure is justified in the public interest (eg to help prevent, detect or prosecute a serious crime)
- if you are disclosing without obtaining consent, you generally should still explain to the patient what data is being disclosed, to whom, and for what purpose – unless this would undermine the purpose of the disclosure, or seeking consent would put yourself or others at risk of serious harm
- explicit consent is required for all other purposes
- at all times you should disclose the minimum necessary data (eg as little data as is required for the purpose, anonymised where possible), and where possible avoid disclosing information relating to other individuals (who may be identifiable from the disclosure)
- maintain a record of your decisions about disclosing or not disclosing data
- medical confidentiality still applies after a patient’s death, with a few exceptions (eg disclosures arising out of handling a complaint, or an executor applying for access to relevant medical information)
- medical confidentiality applies to all forms of communication including social media (eg you should not disclose identifiable data, even on an exclusive members-only doctors forum) and translation (eg if you are relying on a family member to translate for your patient)
Because of the complexity of this topic, the GMC provides additional guidance on a number of specific types of situation that may cause you difficulties – you should review any of these additional guides that are particularly relevant to your area of practice:
- patients’ fitness to drive and reporting concerns to the DVLA or DVA
- disclosing information about serious communicable diseases
- disclosing information for employment, insurance and similar purposes
- disclosing information for education and training purposes
- reporting gunshot and knife wounds
- responding to criticism in the media
The GMC updated their guidelines on the subject in 2017, in part to address some misunderstandings arising from their previous guidance – with some of the key changes being:
- confidentiality should not preclude listening to a patient’s family and friends where it might improve patient care
- doctors should take extra care over maintaining patient privacy in open work environments (eg surgery reception areas)
- when disclosing on the grounds of public interest, doctors should take account of the potential harm or distress to the patient arising from the disclosure, the potential harm to trust in doctors generally, and the potential harm to others if the information is not disclosed
In an attempt to simplify this complex area further, the GMC also now provide a ‘confidentiality flowchart’ as well as an associated ‘Confidentiality decision tool’ –
Medical consent is another topic seen as absolutely fundamental to modern practice in the UK – so it is vital that you understand and follow the guidance.
Good medical practice (GMP) sets out a broad requirement to obtain “consent or other valid authority before you carry out any examination or investigation, provide treatment or involve patients or volunteers in teaching or research”.
The GMC also publishes a dedicated guide to Consent, focusing in more detail on the important role of consent in good clinical decision making:
In this guidance, the GMC sets out five key duties:
- listen to patients and respect their views about their health
- discuss with patients what their diagnosis, prognosis, treatment and care involve
- share with patients the information they want or need in order to make decisions
- maximise patients’ opportunities, and their ability, to make decisions for themselves
- respect patients’ decisions
Although many doctors will automatically follow this process, if you come from a different cultural background – for instance one with more paternalistic attitudes – you may initially struggle with such strong concepts of shared decision making, patient involvement and autonomy.
Consent also applies to other non-clinical situations – such as the decision to take part in research, or the decision to make recordings (audio or visual) of patients.
As with confidentiality, the GMC publishes some additional guidance to support doctors understand and obtain valid consent in these different areas of practice:
And as with confidentiality, the law is complex, constantly evolving, and varies between the different countries in the UK – particularly if you are dealing with adults with incapacity:
England and Wales – Mental Capacity Act 2005
Scotland – Adults with Incapacity (Scotland) Act 2000
Northern Ireland – currently no relevant primary legislation *
* decisions for patients without capacity are governed by common law, to be made “in a patient’s best interests”
Another area where the law on consent becomes more complex is in the treatment of young people, since the rules on the legal age of capacity vary between the different UK jurisdictions. For more information, read:
There may be a few other niche areas where you need to be particularly careful with consent, depending on your area of practice – for instance the treatment of physical conditions in patients sectioned under the Mental Health Act, or if you are a junior doctor who has been tasked with obtaining consent on behalf of a more senior doctor.
10. Safeguarding Children and Adults
Safeguarding is about protecting patients who are vulnerable and at-risk from abuse or neglect. As a medical practitioner you are very likely to encounter patients at times of distress and difficulty throughout your career, and you should be aware that duties of safeguarding apply both to children and adults.
Child protection is perhaps the most clear-cut form of safeguarding – doctors have a duty to act promptly to protect children and young people from abuse and neglect. However it is still an emotionally challenging situation that may involve making complex decisions about when to breach consent or confidentiality, consulting with colleagues and other agencies (such as your local authority children’s services, the NSPCC or the police), and potentially going against the express wishes of parents.
Again, the GMC provides detailed guidance on this complex subject:
You should be aware that safeguarding law and practice varies across the four countries of the UK – the GMC expect you to familiarise yourself with the relevant guidelines for your area of practice.
There are also other agencies who provide useful guidance – for instance the NSPCC outlines the main differences between the child protection systems in England, Scotland, Wales and Northern Ireland:
The GMC also clarifies that you will not generally be penalised for honestly trying to follow the guidance even in cases of a ‘false positive’ – so for example if they receive a complaint after a parent can demonstrate that the child was not actually at risk:
“It is vital that all doctors have the confidence to act if they believe that a child or young person may be being abused or neglected. Taking action will be justified, even if it turns out that the child or young person is not at risk of, or suffering, abuse or neglect, as long as the concerns are honestly held and reasonable, and the doctor takes action through appropriate channels. Doctors who make decisions based on the principles in this guidance will be able to justify their decisions and actions if we receive a complaint about their practice.”
Adults may also be at risk of abuse or neglect – particularly because of:
- care and support needs (eg older people, people with disabilities)
- communication difficulties – who may be unable to alert others
- cognitive impairment – who may be unaware that they are being abused
The GMC has published guidance on safeguarding adults:
The following six adult safeguarding principles are enshrined in law in the Care Act 2014:
People being supported and encouraged to make their own decisions and informed consent.
It is better to take action before harm occurs.
The least intrusive response appropriate to the risk presented.
Support and representation for those in greatest need.
Local solutions through services working with their communities. Communities have a part to play in preventing, detecting and reporting neglect and abuse.
Accountability and transparency in safeguarding practice.
Abuse and neglect can take many forms, and the signs can often be hard to detect – so for clarity the Social Care Institute for Excellence (SCIE) provide the following examples:
- Physical abuse – including assault, inappropriate restraint, controlling food or medication
- Domestic violence/abuse – including violent, controlling, coercive or threatening behaviour
- Sexual abuse – including non-consensual sexual activity and indecent exposure
- Psychological or emotional abuse – including bullying, social isolation, restricting communication
- Financial or material abuse – including theft, fraud, misuse of funds, misuse of legal authority
- Modern Slavery – including human trafficking, forced labour, domestic or sexual exploitation
- Organisational/ institutional abuse – including discouraging visits, lack of respect for dignity
- Neglect/acts of omission – including limiting access to, or not taking account of patient needs
- Self neglect – including lack of self-care to the extent that it threatens personal health and safety
SCIE also set out a number of key challenges in regards to safeguarding adults – including:
- different local authorities (LA) may have different policies on when to accept referrals
- different case workers in the same LA may treat different cases as safeguarding or not
- several GPs have been forced to rely on possibly conflicted family members for translation
- there can be confusion about the boundary between safeguarding and poor care
- limited scope to prevent people with capacity who choose to put themselves at risk
Fitness to practise tribunals are always consistent and clear in their assessment of the importance of this vital topic:
“It found that a number of failures with regard to safeguarding policy and procedures at the Practice had occurred… The tribunal considered that these were all matters that could have put
vulnerable patients at risk… The tribunal considered these to be serious failures related to a vital element of a doctor’s practice and therefore amount to serious misconduct.”
11. Whistleblowing – Know When And How To Raise and Act on Concerns
Doctors in the UK are required to take prompt and appropriate action to raise and act on concerns about patient care, safety and dignity. This is a complex topic, and unfortunately many doctors feel unsure how to correctly balance the requirements of patient safety, public interest, responsibilities to colleagues and duties to employers.
Patients can be at risk in a number of different ways – including:
- basic care – patient health care needs not being met
- inadequate premises – including equipment, or other policies, resources or systems
- colleagues – fitness to practise, conduct or health
The GMC recognise that in a number of situations you may be reluctant to ‘blow the whistle’ – for example because you fear that:
- nothing will be done
- raising your concern may cause problems for colleagues, or impact working relationships
- raising your concern may have a negative effect on your career, or result in a complaint
In order to provide encouragement to you in those situations, the GMC points out that:
- your duty to patients has priority over personal and professional considerations
- whistleblowers enjoy legal protection against victimisation or dismissal
- if you act before proof and are mistaken, the GMC will not hold it against you
You may be able to whistleblow anonymously, but this is not always viable. Depending on the situation, it may be relatively easy for eg a colleague to work out who a complaint came from:
“The tribunal determined that when faced with a complaint … you would have investigated the cases sufficiently to determine who the most likely whistle-blower was. [You] had several locum GPs and trainees working at the Practice who you also believed could be responsible for submitting the complaint. However, you stated that you were eventually able to determine who the whistle-blower was, as Dr B was the GP to see all six patients after yourself.”
And the GMC also concedes that:
- anonymous complaints can be less effective
- if not anonymous, the GMC may have to reveal your identity to help resolve the concern
As a whistleblower, you do have a protected legal status under the Public Interest Disclosure Act 1998 – you should not be treated unfairly or lose your job because you ‘blow the whistle’.
However the law only protects you under certain circumstances – firstly, you have to be a worker (eg employee, trainee, agency worker, or a member of a Limited Liability Partnership).
Secondly, it only counts as whistleblowing if you report:
- a criminal offence
- a threat to someone’s health and safety
- risk or actual damage to the environment
- a miscarriage of justice
- the company is breaking the law
- you believe someone is covering up wrongdoing
The common element here is public interest – the act that you are reporting must have consequences for others – so whistleblowing explicitly does not cover personal grievances, eg bullying, harassment or discrimination.
The UK Government publishes a list of Prescribed Persons and Bodies – these are the people and organisations to whom you may raise concerns:
As you would expect, the GMC is a Prescribed Body for the purposes of raising concerns about registration and fitness to practice of doctors on the GMC register, as well as about their other relevant statutory functions (medical education and standards of medical professionalism).
Whistleblowing is defined by the GMC as “where an employee, former employee or member of an organisation raises concerns to people who have the power and presumed willingness to take corrective action”.
In their full guidance, ‘Raising and Acting on Concerns about Patient Safety’, the GMC describe circumstances where you should contact them (or another appropriate authority):
- If you cannot raise the issue with the responsible person or body locally because you believe them to be part of the problem.
- If you have raised your concern through local channels but are not satisfied that the responsible person or body has taken adequate action.
- If there is an immediate serious risk to patients, and a regulator or other external body has responsibility to act or intervene.
And since the responsibility to whistleblow is both complex and important, the GMC also recommends taking advice from:
- a senior member of staff or other impartial colleague
- the GMC’s Confidential Helpline (0161 923 6399)
- your medical defence body, your royal college or a professional association such as the British Medical Association (BMA)
- the appropriate regulatory body listed at the end of this guidance if your concern relates to a colleague in another profession, or other relevant systems regulators if your concern relates to systems or organisations rather than individuals
- Public Concern at Work – a charity which provides free, confidential legal advice to people who are concerned about wrongdoing at work and are not sure whether, or how, to raise their concern.
Another option is Speak Up, a free, independent, confidential source of advice on the speaking up process – provided by Social Enterprise Direct on behalf of the Department of Health:
If you are a doctor with a management role, you will also have the added responsibility of creating a culture in which staff can raise concerns appropriately – including the options of either trying to put the matter right, handling the concern locally, or referring serious or repeated incidents either to senior management or the relevant Prescribed Person or Body.
Recognising that this can be another challenging area of practice, the GMC has created a decision making tool – to guide you if you have concerns about patient safety:
The GMC also publish a comprehensive flowchart on the subject:
12. Prescribing Pitfalls – Mistakes Are Common, Results Can Be Catastrophic
Prescribing is another very common area of investigation for tribunals – whether through accidental errors (eg poor handwriting, transcription omissions, accidentally clicking the wrong drug or dose from a drop down menu), clinical faults (eg inadequate knowledge of drugs or patient characteristics, failure to properly monitor patients), or inappropriate prescribing (eg self-prescribing, theft, forgery and fraud).
According to the MDU Journal, prescription errors are one of the most common subjects for a claim, and are particularly prevalent amongst GPs. The original error can also often be compounded, for instance by accidentally putting the wrong medication on repeat, and the patient may in effect suffer twice – from the side effects of wrong medication as well as due to lack of the intended drug.
Prescribing errors often do not usually result in significant ongoing harm to the patient, partly because errors are often caught by colleagues or pharmacists before they could affect patients – but as the MDU point out, “in occasional cases the results can be catastrophic”.
A 2009 systematic review of prescribing errors in hospital inpatients acknowledged there was a significant discrepancy between the results of different studies, but drew the following conclusions:
- median error rate was 7% per 100 medication orders
- errors more common in adults (18%) than children (4%)
- 52 errors per 100 hospital admissions
- incorrect dosage was the most common error
The GMC has also previously published research (EQUIP study) into the prevalence and causes of prescribing errors in foundation trainees, which found that errors were common and that support was inadequate:
- mean error rate of 8.9 errors per 100 medication orders
- errors most often made at time of admission to hospital
- errors most commonly involved analgesics, antibacterials, bronchodilators and antianginals
- almost all errors were intercepted by pharmacists
The severity of prescribing errors was found to be rarely serious, but occasionally potentially lethal:
- minor (39.97%)
- significant (52.81%)
- serious (5.48%)
- potentially lethal (1.74%)
This study also found that although the prevalence of prescription errors varied, errors were still present amongst all grades of doctor:
- error rate of 8.4% for FY1 doctors
- error rate of 10.3% for FY2 doctors
- error rate of 8.3% for FTSTA doctors
- error rate of 6.1% for nurses
- error rate of 6.8% non consultant career grade staff
- error rate of 5.9% for consultants
The GMC has also published similar research (PRACtICe study) into prescribing errors in GPs:
- 1 in 20 prescription items contained either a prescribing or monitoring error
- these errors occurred in the treatment of 1 in 8 patients
- the majority of errors were either of mild or moderate severity
- 1 in 550 prescription items contained a ‘severe’ error
The PRACtICe study concluded that the rate of errors was not dependent on the grade of GP or whether the prescriptions were for acute or repeat items, but that the following therapeutic areas were associated with an increased risk of prescribing or monitoring errors:
- malignant disease and immunosuppression
A separate study of intensive care admissions in England suggested that in the week before admission around 27% of patients experienced iatrogenic events – the majority categorised as either medical (37%), drug (17%) or nursing events (17%). It is obviously a small sample size, but out of 104 iatrogenic events in the study, there were 18 medication events, including 9 prescribing errors, 7 inappropriate drugs, 1 failure to monitor drug levels and 1 drug reaction.
GP and prescribing lead Dr Tessa Lewis has published a list of 10 common prescribing ‘traps’:
- Acute kidney injury (AKI)
- Combinations of medicines that increase the risk of bleeding
- Overlooking dual indications
- Prescribing an unfamiliar drug
- Digoxin toxicity
- Opioid overdose
- Inadequate INR control
- Unnecessary antibiotics
- Some medicines should not be stopped suddenly after long-term use
- Inadequate review of repeats
The MDU also provides some useful general guidance online, which underlines that you are ultimately responsible for all prescriptions you sign (regardless of the source) – as well as making the following recommendations:
- understand the drug (including side effects, contraindications, monitoring)
- be familiar with current national guidance (BNF, BNF for Children, NICE, available as apps)
- check patient’s medical history and current medication (including OTC drugs, supplements)
- check contraindications and side effects of unfamiliar drugs
- check automatic drug interaction warnings on computerised systems
- ensure you have selected the right drug, preparation and strength
- consider risks of misinterpreting handwriting, telephone, online and Skype messages
- regularly monitor all long-term and high-risk drug administration for harmful side effects
- take extra care when prescribing to patients with allergies, particularly penicillin
- take extra care prescribing drugs with similar names to other drugs
- take extra care to prescribe the right dose and frequency of drug
Self-prescribing, or prescribing for others close to you, is in almost all cases regarded by the GMC as inappropriate – despite it actually not being illegal, and despite research suggesting that self-prescribing is still a widespread phenomena throughout the world.
In recent years there has been a marked shift away from a culture of doctors tending to their own medical needs and those of their families – the following comment from an interview in BMJ Careers sums this up:
“When I came into practice 30 years ago, we did tend to self treat and treat our families,” says Mike Dixon of the College Surgery, Cullompton, Devon.
“I’m now registered with a different practice, which 30 years ago would have been unheard of and almost thought to be bad manners. But now it’s the right thing to do,” he says.
The GMC tightened up their guidance on self-prescribing in 2013, in response to a significant increase in the number of doctors being investigated for this topic – toughening up the wording from ‘should’ to ‘must’, and adding a requirement to subsequently notify your GP of your actions:
“The latest guidance from the GMC, Good practice in prescribing and managing medicines and devices (2013), says GPs ‘must’ avoid prescribing for themselves or ‘anyone with whom they have a close personal relationship’.
It also adds that doctors must immediately make a clear record justifying why there was no other alternative, and also inform their own, or the other person’s, GP about which medicines have been prescribed.
Previous guidance only said doctors ‘should’ avoid self-prescribing and there was no requirement to inform the relevant GP.”
Self-prescribing is seen as a potentially serious breach of Good medical practice because it:
- may involve drugs of addiction
- may be based on an inaccurate diagnosis
- lacks the rigour of an independent assessment of symptoms
- may prevent treating doctors from understanding what drugs have been taken
- may lead you to be pressured into prescribing inappropriately (eg painkillers)
The GMC has also set out aggravating factors in self-prescribing that may particularly call into question your fitness to practise – and likely lead to more serious sanctions at tribunal:
- prescribing of controlled drugs
- repeated pattern of prescribing
- inappropriate prescribing (eg excessive dosage or quantity)
- probity issues (eg false declarations for free prescriptions, prescribing in names of others)
The MDU publishes supplementary guidance on the dangers of prescribing for yourself or others close to you, recommending amongst other things that “you should be registered with a GP outside your family to ensure you have access to independent, objective medical care”.
Controlled drugs are some of the most commonly abused medications, and can be associated with drug misuse, addiction and misconduct – so the GMC sets out specific guidance on the very few occasions where they deem it could be appropriate to prescribe controlled substances to yourself (or others close to you):
- no other person can legally prescribe
- a delay would put someone’s life or health at risk, or
- a delay would cause unacceptable pain or distress
Finally, it is worth adding a final note about dishonesty and prescribing.
In 2015 the GMC examined 119 fitness to practise cases that had resulted in suspension or erasure in the preceding 12 months. Out of these, 10 cases (8.4%) were relating to dishonesty in prescribing – including theft, forgery and fraud – and the following excerpts from the report show the viewpoint that tribunals will take:
“MPTS panels consider these to be ‘all very serious offences’ and convictions for such offences ‘inevitably undermine the confidence and trust that the public is entitled to place in the medical profession’ (three of the cases involved a conviction).
Specific examples included: doctors attempting to acquire medication for their own personal use, prescribing for people who are non-UK residents, stealing prescriptions and forging prescriptions.
The final outcome with regard to dishonesty in relation to prescriptions was mixed with half being given a sanction of suspension and half a sanction of erasure.”
13. Openness and Honesty – Why You Must Understand the Duty of Candour and Complaint Handling
Patients need to be able to trust medical professionals with their lives and health – therefore doctors have always been required by the GMC to act with openness and honesty. However legislation introduced after the Mid Staffordshire Trust negligence scandal places health and social care providers under a strict, statutory obligation to comply with a ‘duty of candour’ – setting out rules about how you must behave following an adverse event. But many doctors have concerns about the potential risks of being ‘too open and honest’, particularly because of a sense of increasing litigation, as well as recent destabilising GMC actions. So – what is the best way to navigate all this without putting your licence at unnecessary risk?
The GMC sets out a simple – but essential – requirement to behave ethically in Good Medical Practice (GMP):
“Be honest and open and act with integrity”
But GMP also contains more detailed guidelines concerning two situations in particular that require a lot of openness and honesty – dealing with adverse events and handling complaints:
“55. You must be open and honest with patients if things go wrong. If a patient under your care has suffered harm or distress, you should:
a put matters right (if that is possible)
b offer an apology
c explain fully and promptly what has happened and the likely short-term and long-term effects.
61. You must respond promptly, fully and honestly to complaints and apologise when appropriate. You must not allow a patient’s complaint to adversely affect the care or treatment you provide or arrange.
72. You must be honest and trustworthy when giving evidence to courts or tribunals. You must make sure that any evidence you give or documents you write or sign are not false or misleading.
a You must take reasonable steps to check the information is correct.
b You must not deliberately leave out relevant information.
73. You must cooperate with formal inquiries and complaints procedures and must offer all relevant information while following the guidance in Confidentiality”
As you would expect, questions of openness and honesty in dealing with these potentially challenging situations also frequently raised at tribunals, where evidence of a lack of openness is taken as a strong indication that you will not be able to remediate – drastically increasing your chances of a finding of impairment of fitness to practice, as well as the imposition of the most severe sanctions:
“Further, Dr Ekrem failed to notify his Regulator that he had been charged with, and convicted of, the offences as described above, contrary to paragraph 75(b) of GMP, demonstrating a lack of openness with his Regulator.”
“Ms Cundy submitted that although Dr Malik accepted his clinical failings and the findings of this Tribunal, there has been little, if any, evidence of his insight by virtue of his denial of dishonest conduct. She submitted that health care professionals have a duty of candour and that Dr Malik failed in this duty by retrospectively amending Patient A’s record to deflect criticism from himself and by maintaining his dishonesty up to the present day… She submitted that clinical errors happen but that patients, employers and regulators need to be able to trust doctors in order to understand what went wrong.”
Therefore it is important that you fully understand the duty of candour, including why – and how – you need to meet the requirements of openness and honesty in dealing with adverse events and when handling complaints.
The Professional Duty of Candour
All healthcare professionals have a general responsibility to be honest with patients, colleagues and regulators, as set out in broad terms by Good Medical Practice.
However the ‘duty of candour’ was put on a strong statutory legal footing following the Francis report into poor care at the Mid Staffordshire NHS Trust – leading to a number of other reforms, including the publication online of standardised hospital death rates across NHS England.
Although the legally binding duty of candour applies specifically to hospitals and organisations rather than directly to doctors, detailed guidance issued by the GMC and NMC explains that individuals will be expected to:
- tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong
- apologise to the patient (or, where appropriate, the patient’s advocate, carer or family)
- offer an appropriate remedy or support to put matters right (if possible)
- explain fully to the patient (or, where appropriate, the patient’s advocate, carer or family) the short and long term effects of what has happened
The duty of candour applies when, as a result of an error, a patient has been subjected to (at least) moderate harm. And to help remove subjectivity from this definition, the CQC guidelines suggest this means harm that is significant but not permanent, and which results in either a longer hospital admission, an unplanned return to surgery or an unplanned readmission.
A key part of the duty of candour is to offer a genuine apology to patients as soon as possible, followed up by a later written apology – making sure to explain:
- what happened
- what can be done to deal with any harm caused
- what will be done to prevent someone else being harmed
A popular misconception here is that apologising means accepting liability – this is incorrect:
“Apologising to a patient does not mean that you are admitting legal liability for what has happened. This is set out in legislation in parts of the UK and NHS Resolution [formerly NHS Litigation Authority] also advises that saying sorry is the right thing to do.”
In fact – the GMC guidance goes on to point out that an MPTS panel will tend to look on an apology as evidence of insight, making remediation more likely and ultimately reducing the risk to your licence.
This is reinforced in the NHS Resolution leaflet, ‘Saying Sorry’:
“The Compensation Act 2006 states; ‘An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty’. (source: Compensation Act 2006 – Chapter 29 page 3).
In fact, delayed or poor communication makes it more likely that the patient will seek information in a different way such as complaining or taking legal action. The existence of a formal complaint or claim should never prevent or delay you saying sorry.”
“We have never, and will never, refuse cover on a claim because an apology has been given.”
Helen Vernon, Chief Executive, NHS Resolution
And the potential for a prompt apology to prevent escalation is echoed again by the MDU:
“In the MDU’s experience, a sincere and frank apology and explanation can help restore a patient’s confidence in their doctor following an error and help to rebuild trust. This is important for a patient’s future healthcare and can help to avoid a complaint or litigation.”
Don’t Turn a Complaint Into a Court Case
First, you need to accept that you will likely be involved in a complaint at some stage – whether for a minor issue that can be resolved locally, or a major incident that ends up in court.
And you should also understand the crucial importance of communication to the outcome of that complaint:
“Most complaints are secondary to poor communication. In the UK, the three most common complaints to the GMC are related to concerns with investigations and treatment, problems with communication, and a perceived lack of respect for the patient.”
It has been speculated that the reason communication is such a major source of complaints is because patients may be unable to judge the technical competency of the clinical care they received:
“Understandably patients experience difficulties in assessing the technical competency of a doctor, so will frequently judge the quality of clinical competence by their interactions with a particular doctor.”
Often, one of the biggest obstacles to effective complaint handling is a fear of the consequences of the adverse incident. You may have the perfectly understandable fear that the patient affected may want to make a formal clinical negligence claim, or that your fitness to practise may be called into questions – and because of this your natural instinct might be to communicate less and adopt a defensive approach. However reacting like this could actually increase the likelihood that the patient will take things further.
This point is made in a 2014 BMJ article, which observes that “doctors are often extremely disappointed when someone complains about them. They may feel unsupported when dealing with complaints and be fearful of the consequences of doing so.”
However, “inadequate management of the complaint may lead to further work, damage to your reputation, escalation of the complaint, General Medical Council referral, and litigation. Most importantly, the trust that members of the public have in the healthcare service could be jeopardised.”
BMJ – Dealing with complaints as a doctor BMJ 2014; 349
This natural aversion to apologising can be compounded by cultural factors – since different cultures have different associations with the act of apologising, as well as significant differences in language and non-verbal cues.
The GMC has actually issued specific guidance to this effect, in order to help decision makers consider whether a doctor has demonstrated the required level of insight to suggest an easier path to remediation:
“It is important to recognise that there can be different cultural factors which influence somebody’s willingness to apologise. Cross-cultural communication studies into the different ways people from different cultures acknowledge fault show that there are great variations in the way that individuals from different cultures and language groups use language to code and de-code messages. This is particularly the case when using a second language, where speakers may use the conventions of their first language to frame and structure sentences, often translating as they speak and may also be reflected in the intonation adopted. As a result, the language convention, subtleties or nuances of the second language may not be reflected. In addition, there may be differences in the way that individuals use non-verbal cues to convey a message, including eye contact, gestures, facial expressions and touch.”
The importance of cultural factors in complaint handling for BME and overseas-qualified doctors was also picked up in a 2014 report entitled ‘Review of decision-making in the General Medical Council’s Fitness to Practise procedures’:
“GMC Guidance for decision-makers on assessing insight when considering whether undertakings are appropriate contains several passages which address issues of cultural difference. These may be of particular relevance for those doctors who achieved their Primary Medical Qualification outside the UK. The guidance encourages decision-makers to recognise that attitudes towards apologising may differ between cultures, as there may be different understandings of the meaning or potential consequences of expressing fault.”
In spite of what you might initially think, the majority of patients are actually thought to pursue legal avenues out of a frustration with poor communication or a lack of apology.
This is the view of Dr Isabeau Walker, consultant anaesthetist, Great Ormond Street Children’s Hospital, in an MPS article on ‘complaints culture’:
“Many referrals to the GMC could be avoided early if we weren’t so defensive and communicated more effectively. Complaints are mostly the result of poor communication; often we are too wrapped up in what we are doing to consider that and keep the communication channels open. People complain because they feel they have been ignored and feel a deep sense of frustration. We could avoid many issues by talking to a patient’s family early on in the process.”
And the following comments from a patient are fairly representative:
“Rebecca Paine said she would not have taken legal action if the health trust that made mistakes after the birth of her baby had apologised.
“I just felt forgotten about. I wasn’t expecting money because I was blaming myself, like you do,” she said. “I just wanted an apology, but it never came. “Having them admit it was their fault took a lot of pressure off me. A letter from the hospital would have been more than enough. That’s all I wanted.”
Figures released by NHS Resolution (formerly NHS Litigation Authority) show that for 2017/18:
- the majority of claims they receive (69.6%) are resolved without formal court proceedings
- just under one-third (29.7%) end up in full litigation
- fewer than 1 in 100 (0.8%) go to a full trial
- at trial, judgements are in favour of the NHS at a rate of 2:1
You should also remember that the GMC is rarely going to view a one-off clinical error as a significant impairment of your fitness to practise. This was made clear in 2016, when they introduced ‘provisional enquiries’ after a successful pilot scheme – aimed in part at reducing the number of FtP investigations:
“Speaking in an exclusive briefing, GMC chief executive Niall Dickson said: ‘If you as a doctor have done something to me as a patient, it’s a one-off thing, it may be a terrible thing that has disastrous consequences for me. But… If it’s a mistake and there’s nothing reckless or deliberate, and lessons are learnt from it, there shouldn’t be a risk to the profession going forward.'”
It’s not easy, but the best approach would be to treat the incident as an opportunity to assess and improve the quality of patient care being provided – exactly the sort of information that you need to demonstrate in your annual appraisal.
How to Respond to a Complaint
In order to respond effectively to a complaint you should:
- avoid taking it personally, and avoid reacting in a defensive manner
- acknowledge the problem quickly
- listen carefully to what the patient says
- reflect their concerns, so they know you have understood them
- apologise where appropriate – which does not need to mean accepting blame
- be alert to the possibility of language or communication barriers
- outline next steps – for them personally, and to prevent it happening again
- reflect on what went wrong to improve patient care, documenting for appraisal
There are a number of good resources to draw on here – including a Health Service Journal list of ’10 tips to comply with the duty of candour’:
“Managing expectations starts with a good consent process. Are consent forms audited to ensure they include enough detail on risks and benefits? Do you conduct post-operative feedback on whether expectations are met?
Simple things can make a big difference: check that you are writing to the correct person, at the right address and that spelling is checked. Be aware of the timing, particularly around a birthday or anniversary of deceased patients.
The patient should be given a single point of contact for any questions or requests they might have. Make sure their questions are answered and the timescale for doing so is kept. Stay proactive.
The language should be pitched appropriately for the recipient. Do they require additional support, such as an independent patient advocate or a translator?
When meeting patients, speak clearly and slowly, maintaining eye contact. Give them plenty of time to respond. Avoid medical jargon or acronyms.
The more you can include about lessons learned the better. Your response will be more meaningful if you can highlight changes in practice or other tangible improvements. What steps have been taken to stop this happening to another patient?
Who does the patient want the apology from? Whom do they trust? The clinicians will be best placed to say what has changed “on the ground”‘.
A joined up approach is essential. What has already been said? What if the incident occurred at another healthcare provider? Your policy should include channels for reporting to them and shared learning.
Avoid vague or overly formal language which does not actually admit anything, such as “I am sorry you think…” If there has been a mistake, we should accept it and apologise in clear terms. An apology followed by an excuse is not an apology.
Good documentation is key. Discussions around the time of an incident should be recorded in the patient records. Any subsequent meetings should be minuted and followed up by letter.”
“The response to the patient should begin with a sincere apology and acknowledgement of any distress caused. This reinforces the fact that you have listened to the complaint, and that you understand why the patient was angry or upset. A summary of the main points raised in their letter, and what has been done to resolve these, should be discussed. An invitation to meet or contact you again should also be offered.”
And remember that time is of the essence – the complaint should be acknowledged promptly, and not allowed to fester:
“When it comes to complaints the best approach is do it once and do it well; complaints often do not get resolved because they are not investigated in a timely manner. The NHS Complaints Regulations require a complaint to be acknowledged within three working days and responded to within the agreed timescales.”
14. MPTS Tribunal Hearings – Prepare for a Daunting, Prolonged and Legalistic Experience
It is important that you understand what to expect if your GMC investigation leads to an MPTS tribunal hearing, and why the tribunal process is universally described as ‘daunting’. You will need to prepare for a trial in all but name – the hearing will be complex, formal and adversarial; the panel will be headed by a legally qualified chair; the process will be broad-ranging and lengthy. The GMC is on record as saying that it wants to move to a less ‘legalistic’ and ‘adversarial’ Fitness to Practise system, but that this is not possible without change in the law.
Participating in an MPTS tribunal can be stressful and intimidating, and the overall experience is most commonly described with one word – ‘daunting’:
“We understand that if you’re a doctor who has chosen to represent yourself at a medical practitioners tribunal hearing, the process can be daunting.”
MPTS, Information for Self-represented Doctors
“We know tribunals can be very daunting to doctors”.
Dame Caroline Swift, Chair of the Medical Practitioners Tribunal Service
“The fitness to practise process can be an unclear, daunting and stressful experience for a doctor.”
“We have information for people attending a hearing on the MPTS website but I think it is still very daunting, particularly for those doctors who, for whatever reason, do not have legal representation, or for witnesses who are anxious about giving evidence.”
Michelle Shiels, MPTS Tribunal Assistant
What happens on a typical day at an MPTS tribunal?
“I was referred to the GMC who wrote to me explaining they were investigating my fitness to practise and summoning me to appear before an Interim Orders Panel (IOP) the following month… The IOP hearing was daunting. The panel consisted of lay people and doctors from other specialties; I wondered whether they would understand the pressures of working in an exceptionally busy A&E department.”
Experience of Anonymous MDU Member, MDU Journal
“Many doctors (11% of those appearing before the MPTS last year) appear at tribunals without the benefit of legal representation. The whole process is undoubtedly a daunting prospect.”
Paul Diprose, Current Medical Tribunal Member of the MPTS and Consultant cardiac anaesthetist and intensivist, University Hospital Southampton NHS Foundation Trust
Some feel that the process can be particularly harsh on more vulnerable doctors:
“The Royal College of Physicians of Edinburgh has suggested that the process is fairly legalistic and may disadvantage doctors with health concerns or unrepresented doctors.”
But these tribunals can be hugely distressing to everyone concerned – including those who are just appearing as a witness or patient:
“Some doctors are very distressed that they might be restricted or prevented from practising medicine and the majority of patients and complainants are in an alien situation and very nervous.”
Zain Ahmed, MPTS Tribunal Assistant
What happens on a typical day at an MPTS tribunal?
“We understand that the process may be intimidating and unfamiliar”
MPTS Help for Witnesses
“Dealing with the fitness to practise process is a very daunting process for patients or members of the public.”
Action Against Medical Accidents, UK Charity for patient safety and justice
Since the introduction of MPTS tribunals in 2012 some limited attempts have been made to reduce the impact of appearing at tribunals, more for witnesses than for doctors:
“We have also made hearings easier for witnesses who found giving evidence a daunting experience by using video or telephone links, while those who need to give evidence in person are given much more notice.”
MPTS: reflections on the first year
And recognising that many participants will be very unfamiliar with the tribunal setup and environment, the GMC has published photos and diagrams of the hearing room itself – although whether this will reduce or increase nerves is debatable:
However some of the other changes may have the effect of potentially increasing the pressure on the doctor who is ‘in the dock’.
Expect a Trial in Everything But Name
If you are a doctor who is subject to an MPTS tribunal, you will find the experience is very like being on trial – the words ‘legalistic’ and ‘adversarial’ crop up again and again.
In 2016, the chief executive of the GMC stated that “We have consistently said the process we currently have to follow is too legalistic and confrontational.”
This point was echoed by the Professional Standards Authority in 2017, when they commented on the “adversarial, legalistic approach that has developed in FtP over the years”, and proposed changes designed to “minimise the adversarial and legalistic aspects that are prevalent in the current models.”
And current Fitness to Practise processes are described as “legalistic, adversarial, costly and time-consuming” – in an October 2017 Department of Health paper for consultation, “Promoting professionalism, reforming regulation”.
Impact of Legally Qualified Chairs on MPTS Hearings
A recent change is the introduction of Legally Qualified Chairs (LQC) to lead the 3-person tribunal panel – announced by MPTS in a 2017 press release tellingly entitled “Lawyers appointed to strengthen hearing process”.
The role of the LQC is to manage hearings more effectively by advising the rest of the tribunal on questions of law and by drawing on their experience of making judgements to reduce the length of hearings. Each LQC is chosen from a pool of very experienced legal practitioners – defined as “a barrister, chartered legal executive or solicitor in England and Wales; an advocate or solicitor in Scotland; or a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland”.
It is clear that the GMC see the introduction of LQCs are boosting the efficiency of the tribunal process, helping them to get a “stronger grip on proceedings”:
“At the end of 2016, we decided that the pilot was operating successfully and that increasing the use of LQCs would further benefit our hearings in terms of efficiency, particularly to work to reduce the length of hearings. In Summer 2017 we appointed 72 Legally Qualified Chairs.”
“This model, which operates in employment tribunals, would arguably make for a stronger grip on proceedings, saving time and money.”
Clare Dyer, BMJ legal correspondent
There is a revealing comment about the composition of Fitness to Practice panels made by Lady Justice Smith in a 2008 Public Bill Committee regarding the Health and Social Care Bill – in which she argues for the introduction of legally qualified chairs on the basis that they would hasten and tighten up proceedings:
“I recommended that adjudication panels should be chaired by legally qualified people… Chairing a disciplinary tribunal is a job for a legally qualified person, not a lay person. Legally qualified people who appear in front of such tribunals are capable of running rings round the tribunal if no one on the panel is legally qualified. The proceedings would take a lot longer than they needed to if there was not a legally qualified chair. You would achieve a much higher standard of reasoned decision if you had a legally qualified chair because writing a judgment, which is what such a decision is, is a job that requires professional expertise.”
Lady Justice Smith, Judicial Office, Public Bill Committee regarding the Health and Social Care Bill
It has also been shown that MPTS will save a considerable amount of money by simultaneously reducing or excluding the previous ‘Legal Assessor’ role from some or all meetings or hearings:
“Introducing LQCs will result in considerable savings and the table at Annex A demonstrates that for 2017 if we were in a position to have 70% of all hearings led by an LQC from the start of the year then savings would be in excess of £770,000 (against full year budget for 2016)”
But there has been concern raised in some quarters that savings in terms of time and money may potentially come at a different cost – impacting on access to legal advice and support, influencing the power dynamic and tone of communication of the panel, and affecting the perceived independence of the panel:
“Where a panel has a legally qualified chair, but no legal assessor, we consider that there needs to be a process for dealing with advice on legal issues. In one case, it was clear that the panel had misdirected itself about the law and the presence of a legal assessor might have avoided this.”
PSA, Review of Professional Regulation and Registration with Annual Report and Accounts 2016/2017
“One respondent raised a specific concern that legally qualified chairs may be more pointed in how they express themselves and that, ‘given the suicide rate amongst practitioners under investigation, it is vital that the MPTS’s committee behaviour is always exemplary’.”
“The Medical Protection Society said that there should be a legal assessor in each hearing and an individual doctor said the legal assessor role was very important for unrepresented doctors and in assisting the flow of the case. The same respondent also said the independence of the panel would be lost as the level of interaction required between the legally qualified chair and the parties would lead to questions being asked about the chair’s independence.”
“The BMA were concerned that in hearings without a legal assessor the repetition of advice to all parties would be lost.”
“Among them, the BMA said that the power dynamic of the panel would be skewed in favour of the legally qualified chair with the other two panel members unable to challenge the chair’s legal advice and the lack of a legal assessor would lead to delay. Another respondent cautioned against the MPTS becoming a quasi-judicial body with decisions being made by single chairs.”
GMC, Consultation report: Reforming our fitness to practise investigation and adjudication processes
Complex, Formal, and Inquisitorial Style
Because of the legalistic nature of proceedings, you should expect your MPTS hearing to be complex and formal:
“The language in hearings is quite formal and often complex due to the medical detail so paying close attention is essential.”
Zain Ahmed, MPTS Tribunal Assistant
What happens on a typical day at an MPTS tribunal?
You should be aware that the GMC will always be represented by a highly trained barrister with relevant experience, who will have the ability to cross examine you during the hearing. And the panel themselves will also be able to ask you questions:
“In appropriate cases, I also encourage the tribunal to adopt an inquisitorial approach to the evidence, which means asking questions ourselves when we judge that the evidence has not been adequately tested.”
Andrew Lewis, Legally Qualified Chair at the MPTS
The role of Legally Qualified Chairs at the MPTS
Tribunals Have a Broad Remit
And remember that the role of the tribunal is not just to establish and act on the specific facts of your case such as your clinical competence – they also have the scope to consider the wider issue of public confidence and damage to the reputation of the profession:
“The tribunal’s decision is not intended to be punitive, but it may have a punitive effect. The main reason for imposing sanctions is to protect the public, which includes:
– protecting the health, safety and wellbeing of the public.
– maintaining public confidence in the profession.
– promoting and maintaining proper professional standards and conduct for the members of the profession. ”
And the Sanctions Guidance document issued by the GMC explicitly confirms that the interests of the profession must necessarily trump those of an individual doctor:
“Although the tribunal should make sure the sanction it imposes is appropriate and proportionate, the reputation of the profession as a whole is more important than the interests of any individual doctor.”
Prepare For a Long, Long Process
A final similarity with court proceedings is that MPTS tribunals are always painfully slow. In 2015 an MPTS press release admitted that FtP investigations typically lasted 6.2 months without a hearing, and 22 months with a hearing:
“Overall fitness to practise investigations that did not go to an MPTS hearing lasted for a median time of 6.2 months between 2010 and 2014 before being closed. Cases that go to an MPTS hearing generally last around 22 months regardless of the outcome.”
MPTS Press Release, December 2015
There have been some recent moves to try and speed things up, but you should still be braced for a lengthy process – punctuated by a series of written determinations – before matters conclude and a final decision is reached and then published on the internet.
There will often be a period of 28 days before sanctions take effect – however sanctions can be imposed on the same day where patient safety is deemed to be at risk:
“If the tribunal believes it is necessary to protect patients, it can impose an immediate order of conditions or suspension. If you are at the hearing, this will be done on the same day.”
15. Legal Representation – Knowing When to Get Help
It is technically possible to make it through a GMC Investigation and MPTS Hearing without legal representation – and the GMC publishes numerous detailed guides for doctors who are brave enough to go it alone. However a specialist medical regulatory law barrister will offer you the benefit of their objectivity, training, experience and knowledge – likely saving you a considerable amount of time and money, a huge amount of distress, and quite possibly your future career. The GMC will be represented by an experienced specialised barrister – why would you not do the same?
Self-Representation at MPTS Tribunals
In 2017, about 1 in 8 doctors attended MPTS hearings without legal representation – a figure which has remained fairly similar for a number of years.
Support for doctors appearing before a tribunal
The GMC publishes a wealth of factsheets and other information to doctors who choose not to seek legal representation during an investigation or hearing:
Adverse Inferences and Refusal to Admit Evidence
A Tribunal’s Power to Make a Costs Award
Making a Submission to the Tribunal
The MPTS also provides a free telephone information service run by students in Manchester to help self-represented doctors try and prepare for a tribunal hearing. This service is run by student volunteers from the BPP Law School and the University of Law – you phone or email the service, and within a few days a student volunteer will get in touch with you to go over some basic information about the hearings process. You should be aware that this service has some obvious limitations – for instance the students are unable to comment on the specifics of your case, and they are unable to provide legal advice.
But the GMC does not really encourage you to complete the process without a solicitor or barrister – in fact in a number of clear public statements they strongly discourage doctors from self-representing:
“We strongly advise you to seek advice and be legally represented. However, if you decide to represent yourself at your hearing, you should take time to familiarise yourself with the hearing process.”
“Explore all possible opportunities to seek advice and get representation for the hearing.”
In fact, even the leaflet for the free telephone information service encourages you to think about getting representation:
“You should consider being advised and represented by a solicitor. They will know how to prepare your case and present the information that the medical practitioners tribunal needs.”
When making the decision whether or not to self-represent, you should remember that there are likely to be two legally-qualified individuals at the tribunal already – the tribunal chair, who will lead the MPTS panel assessing whether your fitness to practise has been impaired, and the solicitor or barrister representing the GMC, who will present the case against you.
The MPTS website confirms that “the GMC is normally represented at the hearing by a barrister”.
You may wonder whether legal representation would make much of a difference – fortunately there are some statistics published by the GMC.
GMC Statistics For Doctors With Legal Representation
In 2015, the GMC published an analysis of cases from the previous year that resulted in a finding of impairment and one of the most serious sanctions being imposed – suspension or erasure.
This analysis revealed that – of the two outcomes, suspension or erasure – doctors with legal representation at hearings were significantly more likely to merely be suspended (72%), rather than struck off (28%). In contrast, 69% of self-represented doctors were struck off:
“Doctors who were represented were more likely to be suspended than erased (in 41 of the 57 cases where the doctor was represented, they were suspended); whilst those not represented were more likely to be erased (in 43 out of the 62 cases where the doctor was not represented, they were erased).”
“In around half of the cases which resulted in a final outcome of suspension (31 out of 60), the doctor was present at the hearing, represented at the hearing and admitted to some or all of the allegations made. Conversely, in around half of the cases (30 out of 59) that resulted in a final outcome of erasure the doctor was not present at the hearing, not represented at the hearing and did not admit to any of the allegations made.”
Benefits of Legal Representation
There are a number of important benefits to getting the right legal representation as early as possible in proceedings – preferably right at the outset.
Depending on the circumstances, it may be possible while at the Rule 7 and Rule 8 stage for your representative to persuade the case examiners that there is no case to answer – effectively stopping your Fitness to Practise investigation before it reaches the MPTS tribunal stage.
Even if you cannot stop the case completely at this early stage, it may be possible to significantly reduce the number or severity of allegations you face – therefore reducing the range of sanctions that could be imposed.
If your case progresses to a tribunal, your legal representative plays a very important role in establishing rapport with the three tribunal members, as well as with the barrister for the GMC. It is crucial to manage these relationships well as it can make a significant difference to the level of sanctions sought by the GMC, and to the severity of sanctions eventually imposed (if any).
The tribunal is a highly formal and legalistic environment, which benefits from a certain skillset. A suitably trained and experienced barrister will know how to present your case in the most effective and efficient manner, will know how to deal with the politics of the room, will know when to challenge or concede a point, will know how to negotiate a sanction or Condition of Practice that is more acceptable to you. Another benefit is that your representative can sometimes say things that you cannot without harming your own case.
What Type of Legal Advice or Representation Do You Need?
Picking the right type of legal advice or representation can make a huge difference to your overall experience as well as the outcome of any investigation or tribunal.
The first thing to point out is that you should have your own personal independent legal expert, rather than relying on a lawyer provided by your employer. It is not uncommon for conflicts of interest to arise, and we know from experience who they will prioritise – it won’t be you.
It is also important to point out that medical regulatory law is a very niche specialism – lawyers who offer it as part of a broader service are generally not experts. The GMC’s case against you will be made by a specialist barrister – so it is only appropriate to instruct a specialist youself.
Kingsview Chambers 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).
But our barristers also have additional qualifications from the Bar Standards Board, meaning that we can carry out all of the tasks that a solicitor can – including litigation. The benefit of this is that you can deal with your case barristers directly throughout, rather than via middlemen. You save money, because we can perform both roles at the same time. And it also means that the people who you deal with while preparing your case will be the people who represent you in the tribunal hearing.
At Kingsview Chambers, we have experience defending every level of doctor in all tribunals every day of the week for the last 10 years.
We have a five star rating on Trustpilot:
“After thorough research I was fortunate to find Mrs Catherine Stock of Kings View Chambers. She was honest and upfront in her review of my situation from the outset, giving practical advice as to the best way forward and reasonable and affordable costings. She came across as confident, professional, warm, and friendly and sounded like someone who knows her job. ”
We always quote a fixed fee at the outset and stick to it – so you know exactly what you case will cost. Unlike solicitors, we don’t charge hourly rates, or have additional costs for each email, letter or conference.
We give an initial opinion of your case for a fixed fee of £750 plus VAT – which includes the head of department reviewing all your papers and having a one hour telephone conference with you to explain our view.
Stephen McCaffrey Says:
By reading and following the information in this guide you will hopefully be able to lower your risk of being subject to a GMC investigation or MPTS tribunal, and you will be better informed about what to expect should you decide to go down the path of self-representation.
But you should remember that the GMC’s daunting and legalistic disciplinary processes prioritise patient safety and public confidence over protecting doctor’s interests. The GMC will always be represented by a specialist barrister who will make the case against you. And any legal advice and representation provided through your employer may have a conflict of interest.
If your career and reputation are on the line you should at the very least discuss your case with a specialist medical regulatory legal expert – the earlier the better.