General Medical Council (GMC) pilot study leads to measures promising a reduction in the number of full investigations where doctors make a ‘one-off’ clinical mistake

Measures announced last month by the GMC aim to speed up information gathering and decision-making after a complaint is made.

Measures announced last month by the GMC aim to speed up information gathering and decision-making after a complaint is made. They follow a two-year pilot scheme, during which GMC investigators sought to rapidly assess information from medical records and independent experts, to determine whether patients were at ongoing risk and if not, close cases without the need for a full investigation.

During the two-year pilot, a total of 309 cases were looked at, resulting in 202 being closed after initial /provisional enquiries only, without requiring a full-scale investigation. The results give hope to those acting for clinicians, in the stressful circumstances of regulatory scrutiny, of a process that is speedier and more proportionate going forward.

The pilot was the latest in a number of initiatives undertaken by the GMC in the wake of an independent review of cases where doctors subject to fitness to practise investigations had committed suicide. The outcome of that review was the appointment of an independent psychiatrist to look at each step of the investigation process from complaint through to hearing, to advise the GMC on how to reduce the impact and stress of investigations on doctors.

Under the GMC’s existing ‘Single Clinical Incident Provisional Enquiry (SCI-PE)’ process, appropriate cases (usually relating to the care of a single patient, involving a single consultation or clinical procedure) are dealt with at ‘triage’ stage by obtaining targeted information from records, expert input, responsible officers and the doctors themselves, and a decision made on whether the case can be concluded, without the need for full investigation. This process aligns with the long established principle that a single clinical incident on its own (unless very serious) is unlikely to lead to a finding of impairment, particularly if the doctor has taken appropriate action to reduce the risk of repetition. However, it is important to recall the broad parameters the GMC has stated will indicate a case is unlikely to be suitable for the process:-

  • Incident of such seriousness that failure to act may impact upon public confidence in the profession
  • There is a current open investigation and/or previous history relating to the doctor’s fitness to practise
  • There are potentially health or language concerns such as to trigger the relevant threshold for full investigation
  • Significant dispute of witness evidence relevant to consideration of the allegation

The latest measures are nevertheless a welcome step forward which it is hoped will rapidly develop into a similarly proportionate approach to consideration of single clinical concerns i.e. cases involving more than one procedure or consultation, but confined to a single course of treatment by a doctor. Further information, including the approach taken by GMC case examiners to Single Clinical Incidents, can be found on the GMC website, within the ‘Guidance for decision makers at triage on assessing the suitability for referral to a single clinical incident provisional enquiry’ and ‘Guidance on conducting and deciding the outcome of single clinical incident provisional enquiries’.

In other news, the High Court last month considered, in Blakely v General Medical Council (GMC) [2019] EWHC 965 (Admin), the extent to which a registrant could demonstrate insight without admitting guilt for something he/she does not accept doing. Healthcare Regulatory Partner Simon Turner explores the case.

Demonstration of sufficient insight into wrongdoing/misconduct and taking steps to reduce the risk of repetition are key factors when panels consider if a registrant’s fitness to practise remains impaired and, if so found, the appropriate sanction to impose.

The misconduct in question here was covert recording of a colleague’s consultation with patients at the private clinic where Dr Blakely worked (apparently due to concern the colleague was under-cutting the clinic’s pricing structure) and thereafter, upon exposure of the recording and subsequent patient complaints, dishonest responses to those complaints. Dr Blakely had asserted in emails to the complainants that the recording had been done with the full awareness of, and pursuant to advice from, the GMC and the Care Quality Commission (CQC). Dr Blakely accepted the recording had been undertaken and the emails sent. She denied the latter were misleading or dishonest on the basis she had called the GMC and CQC (albeit anonymously) prior to the action taken. However the Medical Practitioners’ Tribunal Service (MPTS) when first considering the case in May 2018 concluded that the contacts had been limited anonymously made and no such advice had been given. The MPTS concluded Dr Blakely’s fitness to practise was impaired by reason of this misconduct and imposed a 6-month suspension with review. It was the outcome of that review, in November 2018, which was the subject of this appeal under section 40 of the Medical Act 1983. The appeal challenged the approach the reviewing panel had taken at the hearing and the proportionality of the overall decision.

At the review hearing, in response to GMC and panel questions exploring whether Dr Blakely now accepted she had acted in a misleading and dishonest way, Dr Blakely accepted her statements to patients in relation to the CQC were misleading, albeit stopped short of accepting dishonesty. She denied that her statements to patients in relation to the GMC were misleading or dishonest. As such the MPTS considered her oral evidence contradicted the written reflections she had submitted to them that she ‘accepted the Tribunal’s findings and have done my best to learn from them’. They concluded that she continued to lack insight and her fitness to practise remained impaired. They imposed a further period of suspension (9 months) with a review. On appeal, Dr Blakely argued the decision on impairment was wrong. It was based substantially on inappropriate questions about her evidence at the first Tribunal. There was no basis for imposition of a further suspension, which was disproportionate and not in the public interest. Objection was also raised to the fact the suspension imposed at review was even longer than that originally imposed by the Tribunal at the first hearing.

In a decision last month, Lewis J rejected Dr Blakely’s appeal, finding that the questioning was properly directed toward ascertaining whether sufficient insight had been acquired since the last decision i.e. whether the doctor could demonstrate that she knows and understands why the conduct (principally, the making of untrue statements in response to patient complaints) was considered unacceptable and that it will not be repeated. The MPTS did not err, said Lewis J, in its assessment that Dr Blakely had not demonstrated sufficient insight; that her fitness to practise remained impaired and a sanction appropriate. As to the period imposed, the fact it was longer than that originally imposed, does not make it wrong, said Lewis J. There was no basis to interfere with the panel’s view that the doctor required 9 months to reflect properly on her misconduct and demonstrate the necessary insight.

However, echoing the principles most recently outlined by Yip J in the case of Yussuf v GMC [2018] EWHC 13 (Admin), Lewis J did reiterate (paragraph 26) that “the essential question is how to reconcile the need to ensure that the doctor… has acquired the requisite insight into his or her conduct so that there would not be an unacceptable risk of repetition, with the fact that a doctor cannot be required to accept that he or she has had done something when this is denied” (our emphasis). Lewis J acknowledged (paragraph 31) that this may be a difficult exercise for panels, but they must ‘balance concerns about ensuring that the doctor understands why conduct is unacceptable, so that there is no risk of repetition’ without ‘forcing the doctor to admit guilt for something that he or she does not admit doing” (our emphasis). The questioning of registrants by the regulator or members of the panel ‘need to bear this distinction in mind when dealing with insight at a review hearing’.

In the present case, Dr Blakely ‘could have demonstrated sufficient insight’ if she had ‘accepted, with the benefit of hindsight, her actions were dishonest even if she had not appreciated that at the time’, or if not prepared to accept that, ‘she might have demonstrated that she understood why the Tribunal took the view that…the public would regard such action as dishonest and why, therefore, that conduct could not be repeated’.

Suffice to say, this remains a difficult area for registrants, when requested to reflect on matters originally found against them, with which they continue (albeit in the absence of appeal) to disagree. Although ‘admitting the misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it’ (Yusuf ibid, paragraph 20) at a review hearing the question whether the registrant now admits the misconduct ‘is relevant for the Tribunal to know’ when considering fitness to practise, as indeed will be any panel perception of a ‘want of candour and/or continued dishonesty’. That said, registrants and those representing, looking carefully at case presentation ahead of a review, will be assisted by consideration of Yip J’s comments in Yusuf, and now Lewis J in the present case (paragraph 31):-

A bland reference by the doctor to accepting the findings of the Tribunal may be insufficient. The individual doctor may accept the findings in the sense that it is not possible to go behind those findings and they stand as the adjudication on the conduct. The doctor, however, has to demonstrate how, given those findings, he or she can reassure the Tribunal that sufficient insight has been acquired and the doctor knows and understands why the conduct was considered unacceptable and cannot be repeated”. Nevertheless the Judge did warn Tribunals that this “is subtly different from the doctor having to accept that he or she did what they are accused of (or, as here, that the conduct fell below objective standards of honesty). Questioning of appellants by legal advisers or members of the Tribunal may need to bear this distinction in mind when dealing with insight at a review hearing”.

Other regulators in the High Court last month

An osteopath who had engaged in a sexual relationship with a patient during consultations unsuccessfully appealed a strike off decision made against him. In Kern v General Osteopathic Council [2019] 4 WLUK 232, Spencer J, rejecting the appeal, found that the behaviour, which had also involved dishonesty, ‘struck at the heart of the relationship of trust that the public had to be able to expect’.

A nurse also failed in her appeal of a strike off imposed by a Fitness to Practise Panel (FTP) of the Nursing and Midwifery Council, despite the NMC prosecutor having submitted continued conditions would suffice and the legal assessor mistakenly misrepresenting those submissions as seeking strike off. In the case of Abbas v Nursing and Midwifery Council [2019] EWHC 971 (Admin) Lang J observed in relation to the latter issue, that the FTP had not been influenced by the error made, and reiterated, in relation to the former issue, the primacy of the FTP as decision-maker. The panel was not wrong to conclude that strike off was appropriate given the registrant had been under conditions for 6 and a half years and given the evidence showed ‘continuing weaknesses……in basic and fundamental areas’.

For further information about any of the issues in this update, please contact Simon Turner, Partner in the Healthcare Regulatory team, on 020 7822 1922 or simon.turner@weightmans.com.

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