Standards of conduct – General Medical Council (GMC)

Consulting editor James Watts gives a brief seminar on the complaints processes at the General Medical Council (GMC)

The role of the General Medical Council (GMC) as the regulator of medical practitioners is confirmed in statute by the Medical Act 1983 and its subsequent revisions [1]. The Medical Act empowers the GMC to maintain a register of approved practitioners, and to take disciplinary action against the registration of those who have failed to maintain appropriate standards, as well as governing other duties such as those related to education and standard setting.

This disciplinary action can range from the issuing of an official warning to the erasure of the individual from the register. The latter effectively stops the individual working legally as a doctor. This affects the civil rights of the doctor, and so the GMC must act within the law when making its decisions. The GMC therefore has strict rules governing its processes for the handling of complaints to ensure that it can maintain both the confidence of the public and the trust of the profession.

The standards that all doctors are supposed to apply to their personal and professional conduct are published in Good Medical Practice and its associated guidance [2,3]. Ignorance of this guidance is not regarded as a defence. Key paragraphs include:

• 1 You must have the necessary knowledge of the English language to provide a good standard of practice and care in the UK
• You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession
• You must tell us without delay if, anywhere in the world:

(a) you have accepted a caution from the police or been criticised by an official inquiry

(b) you have been charged with or found guilty of a criminal offence

(c) another professional body has made a finding against your registration as a result of fitness to practise procedures.

Here I will outline briefly the complex GMC processes for handling complaints

Anaesthetists and the GMC

Campbell and colleagues compiled a study of the cases concerning anaesthetists who had been referred to the GMC in 2009, using the GMC’s own data [4]. They found that there were 105 cases where anaesthetists were referred to the GMC in this year, of which 81 cases were referred for detailed investigation. At this time they estimated that there were approximately 9000 registered anaesthetists in the UK [5]. The referral rate of anaesthetists to the GMC was therefore lower than the average for all doctors (0.095% vs 0.2%), but they were more likely to be referred by employing bodies rather than the public. Over 50% of the referrals related to either probity or clinical care issues. There were on average two different complaints per referred anaesthetist.

For those who may be anxious about the possibility of vexatious or undeserved referral to the GMC, a simple Internet search confirms that those who do end up having sanctions placed against them at a panel hearing are judged to have committed serious breaches of Good Medical Practice [6–9].

Initial complaints handling processes

Complaints to the GMC can arise from the public, the employer, a public body or official (such as the CQC, the PHSO, the Coroner, etc.) or, on occasion, can arise from media coverage. Occasionally, there may be an internal GMC referral (for example, a doctor who fails to comply with conditions on their registration).

For the GMC to investigate a complaint further it must be about an individual doctor, and it must be a serious complaint which, if proven, has a realistic prospect of establishing that their fitness to practise could be impaired. It is important to remember that it is the civil standard of proof (i.e. the balance of probabilities) rather than the criminal standard (i.e. beyond a reasonable doubt) which applies in this regard.

Investigations can be divided into three broad categories:

• Health – i.e. it is alleged that the doctor has a health issue which may affect their fitness to practise. This would typically be a serious health or addiction issue at risk of relapse and impairing patient care and insight.
• Conduct – i.e. it is alleged that the doctor’s professional or personal conduct is such that the doctor’s fitness to practise is impaired. This will include circumstances such as the doctor being subject to criminal charges, prosecution, a caution or similar sanction, or a guilty verdict in a criminal trial. It may also include failure to adhere to quality control and appraisal processes, and failure to comply with the reasonable requests of the employer.
• Capability – i.e. the doctor’s clinical work is poor, such that it indicates their fitness to practise is impaired. This can relate to one individual episode of serious poor practice; or several incidents; or long-term performance issues which have not been resolved locally.

It is possible that one investigation may span several different categories. For example, a doctor may have been found guilty of drunk driving, and have been found to suffer from a mental health issue, and there may also be concerns about clinical performance.

The Medical Act allows the GMC Investigation Committee to make decisions on the doctor’s registration based on the seriousness of the incidents. The Act allows the Committee to delegate this work to appropriate individuals. These individuals include the Registrar, the investigation department and its officers, and the Medical Practitioners Tribunal Service (MPTS). The MPTS is the adjudication service, separate to the GMC, which holds fitness to practise panels [10].

A complaint may be closed by the GMC at the initial triage stages if it is felt that the issue being raised has no impact on any of the above matters; and if there is no indication that a failure to consider it would undermine the public confidence in either the profession as a whole, or the regulator.

It may also be decided that the allegation, although serious, is ‘stale’ and therefore cannot be pursued. While there is no statute of limitations in British law for criminal acts, in civil actions the regulator is allowed to impose one. It may be, for example, that alleged malpractice occurred many years ago, in which case it is unlikely that it can be thoroughly investigated to the required standard of proof. In such a case, there would have to be an overwhelming and clear public interest issue, and exceptional circumstances, for the GMC to open such an investigation.

Investigations process

If a complaint is thought to fulfil categories that allow it to be investigated, it can be categorised into one of two types.

A stream 2 investigation allows the employer to be contacted to see if there is any further information about the complaint, i.e. if the initial complaint might only be serious if it is indicative of a poor pattern of clinical or professional behaviour. For example, if a patient contacted the GMC claiming that the doctor was abusive to them in a consultation, the GMC could legitimately write to the employer asking if there was a pattern of such behaviour, and if there is any information about the alleged incident, and its consequences. If there is a satisfactory response at this stage, the investigation could be closed. If the employer writes back to confirm that there are, for example, many complaints of a similar nature, or highlights other worrying concerns, then the investigation would proceed to stream 1.

Stream 1 investigations can be opened at any stage. This basically means that there is an indication of a serious concern which might indicate a fitness to practise issue. The investigation can include examination of training records, employer personnel files, disciplinary records, relevant medical notes and so on. Those relating to criminal matters may include access to police records and files, and court transcripts; and those relating to fatal outcomes may include access to Coroner inquest transcripts.

The information is gathered and compiled by a case worker, and presented at various stages to the case examiners, who make decisions on the progress and disposal of the investigation. Sadly, gathering such evidence can take a long time, particularly when reliance is placed on evidence from external authorities, which is frustrating for the doctor and the complainant. However, the aim is to make a robust, lawful, fair decision that can resolve the issue completely.

There are various stages at which the investigation may be closed if it is felt that there is no realistic prospect of showing that fitness to practise is impaired based on the gathered evidence. There are also various stages at which referral to an interim orders panel (IOP) can be made. An IOP referral is considered when there is evidence of a possible ongoing risk to the public, or to public confidence, if consideration were not given to placing restrictions on the doctor’s practice while the investigation was ongoing. Not all IOP referrals result in restrictions; however, if orders are made, they must be reviewed at regular intervals [11,12].

Investigation outcomes

Investigations will always result in a decision being made on the doctor’s fitness to practise. There are four categories of decision:

(i) The evidence is such that the investigation can be closed with no further action, or advice.

(ii) The doctor is asked to accept a warning. This is action on registration, because a warning is made available to the profession and the public for five years. This occurs when the doctor has committed acts or omissions which are serious deficiencies in practice or conduct which, if repeated, would be serious but which do not satisfy the realistic prospect test at that time. For example, the acceptance of a police caution often results in a warning. The doctor can appeal against a warning to the Investigation Committee.

(iii) The doctor may be asked to accept voluntary undertakings to restrict or improve their practice.

(iv) The doctor is referred to a fitness to practise hearing. This occurs when the case examiners judge that there is a realistic prospect of showing that a doctor’s FTP is currently impaired. Only a small number of complaints are considered to be sufficiently serious to reach this stage. Not all result in a finding against the doctor, or erasure. However, the panel, which is held by the MPTS, a separate GMC-funded body, may take several actions. They may close the case without sanction, they may issue a warning, or they may order suspension or erasure. Additionally, they may state that the doctor can continue to practise, but can only do so with restrictions on their registration. These may, for example, relate to retraining in certain areas

Appeals against decisions

It has already been described how a doctor can appeal against a warning. There is an appeals process against an MPTS decision, but this requires the doctor to show either abuse of process, or that there is compelling new evidence that should be considered, and should be made within 28 days [11]. It is also possible for the doctor to appeal to the High Court, to overturn a decision. The most relevant recent case in this area is Cohen vs General Medical Council [13,14]. The judge ruled that the FTP panel had not taken account of the fact that the doctor’s failings were, and had been, easily remediable.

The ultimate appeal is a judicial review [15]. This is not an appeal in the normal sense, in that the review cannot consider the merits of the decision, only how it was reached. Judicial reviews only take place in the High Court and are only permitted if there is no other available resort. Their ultimate sanction is to decide that the decision made stands, because it was reached properly; or that the public body must make the decision again, properly applying its processes. A judicial review is allowed by the Court if there is a suspicion that the decision made was unlawful, unreasonable or unfair. An unlawful decision means that the public body has misinterpreted or exceeded its responsibilities under the law. An unreasonable decision is one in which it is concluded that a ‘reasonable’ person considering the evidence would not have reached the same decision. An unfair decision is one in which there is judged to have been procedural impropriety for some reason, or where a reasonable person may consider that there might have been some bias.

Conclusion

Every person has the right under the Human Rights Act 1998 [16] to a fair, public, timely hearing, and access to an independent tribunal when disciplinary matters are being considered; and to appeal against the actions of a public authority such as a professional regulator.

The GMC procedures are subject to rules which may appear bureaucratic, and which may appear slow, but which are ultimately designed to ensure lawfulness, fairness and reasonableness. There are inbuilt appeal procedures which can be invoked at various stages, and there is also access to the courts should the doctor feel that they have grounds for a judicial review.

Fortunately, evidence suggests that anaesthetists are less likely than other doctors to be referred to the GMC, and that those that are referred to a panel have usually committed serious breaches of Good Medical Practice. There is no room for complacency, however, and knowledge of Good Medical Practice should be regularly reviewed

References

1. General Medical Council. The Medical Act 1983. www.gmc-uk.org/about/legislation/medical_act.asp (accessed 22 September 2014)
2. General Medical Council. Good Medical Practice 2013. www.gmc-uk.org/guidance/good_medical_practice.asp (accessed 22 September 2014)
3. General Medical Council. Good Medical Practice: Explanatory guidance. www.gmc-uk.org/guidance/ethical_guidance.asp 9 (accessed 22 September 2014)
4. Campbell, G., Rollin, A.M. & Smith, A.F. (2013) Cases relating to anaesthetists handled by the UK General Medical Council in 2009: methodological approach and patterns of referral. Anaesthesia 68(5), 453–460 http://onlinelibrary.wiley.com/doi/10.1111/anae.12117/abstract
5. GMC annual statistics 2009. www.gmc-uk.org/2009_Annual_Statistics.pdf_33097340.pdf (accessed 22/09/14)
6. Dyer, C. (2014) Anaesthetist is struck off UK register after colleagues found he had been dismissed in Ireland. BMJ 348  http://dx.doi.org/10.1136/bmj.g242 (accessed 22 September 2014)
7. The Yorkshire Post. Doctor struck off after sniffing anaesthetic chemical at work. www.yorkshirepost.co.uk/news/main-topics/general-news/doctor-struck-off-after-sniffing-anaesthetic-chemical-at-work-1-6094363 (accessed 22 September 2014)
8. Honigsbaum, M. (2005) Anaesthetist struck off for helping to end patient’s life. The Guardian. www.theguardian.com/society/2005/nov/17/health.healthandwellbeing (accessed 22 September 2014)
9. The Telegraph. Anaesthetist who took drugs before going into the operating theatre loses appeal.

www.telegraph.co.uk/health/healthnews/9255318/Anaesthetist-who-took-drugs-before-going-into-the-operating-theatre-loses-appeal.html (accessed 22 September 2014)

1. The MPTS. www.mpts-uk.org/about/1520.asp (accessed 22 September 2014)
2. The General Medical Council. A Guide to Doctors referred to the GMC. www.gmc-uk.org/concerns/doctors_under_investigation/a_guide_for_referred_doctors.asp#whathappenendinvestigation (accessed 22 September 2014)
3. The General Medical Council. Interim Orders Panel. www.gmc-uk.org/concerns/hearings_and_decisions/interim_order_panel_referrals.asp (accessed 22 September 2014)
4. Cohen v General Medical Council [2008] EWHC 581 (Admin) www.bailii.org/ew/cases/EWHC/Admin/2008/581.html (accessed 22/09/14)
5. Naish, J. (2011) Just how bad does a private doctor have to be before he gets struck off? The Daily Mail. www.dailymail.co.uk/health/article-2050279/Just-bad-does-private-doctor-gets-struck-off.html (accessed 22 September 2014)
6. www.judiciary.gov.uk/you-and-the-judiciary/judicial-review/ (accessed 22 September 2014)
7. www.legislation.gov.uk/ukpga/1998/42/contents (accessed 22 September 2014)

James Watts

James Watts is a Consultant in Critical Care medicine and anaesthesia at East Lancashire NHS Trust in Blackburn