The GMC Investigation Process: What You Need to Know

1. New GMC guidelines – how things have changed?

The new GMC guidelines bring into focus the professional duty of candour that every healthcare professional should embrace. The new guidance outlines the importance of reflection as part of the GMC investigation process. It emphasises the role of reflection in maintaining and improving standards of professional practice whilst improving patient safety.

2. What happens in the GMC investigation process?

For more information, read our legal guide to GMC Fitness to Practise

3. The GMC investigation process in conjunction with criminal proceedings

If a doctor is charged and/or convicted of criminal wrongdoing by the courts, the GMC will usually launch its own fitness to practise investigation. In the majority of cases, the GMC will wait for the outcome of any criminal proceedings before embarking on its own GMC hearing once all the facts are known. However, an interim order hearing may be launched during court proceedings if the nature of the allegations demand it.

If a criminal case ends in acquittal or abandonment, the GMC may still investigate. In these circumstances the prospect of facing a fitness to practise investigation can feel unfair, especially when it’s based on the same facts deemed not to warrant prosecution in the courts.

The GMC has a responsibility to protect the public, so has a duty to consider whether an individual’s fitness to practice still meets the profession’s exacting standards or if it has been impaired as a result of allegations the criminal proceedings were based upon.

4. GMC hearings following a conviction/caution

In the event of a conviction, the GMC will take a certificate of conviction as proof that a crime was committed. The doctor will therefore not be able to go behind the conviction and attempt to evidence their innocence.

The GMC will take into account the following issues:

• The facts from the criminal court

• The judge’s sentencing remarks

• The nature of the sentence handed down

• The severity of the offence

• The degree of remorse shown

• The chances of repeat offending

• The effect this case has on wider public perception of the profession

Any custodial sentence will be taken seriously by the GMC. However, a smaller penalty will not automatically result in a lesser sanction. While a conviction will not automatically lead to erasure, where the individual is ‘struck off’, this outcome will be considered as a starting point for offences that relate to dishonesty, violence or are of a sexual nature.

5. Fitness to practise appeals

When a practitioner is struck off the consequences can be severe for career and their private lives. In this case, it may be possible for the individual to appeal against the GMC’s decision.

During an appeal hearing the Court has the power to:

• Dismiss the appeal

• Uphold the appeal and quash the original decision

• Substitute the original decision appealed against with another decision

• Return the case to the panel for disposal according to the Court’s decision.

The Court should uphold the following general principles which apply to all professional disciplinary committees appeals:

1. The Court will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the profession expects of its members deserves respect;
2. The Court will have regard to the fact that the tribunal has had the advantage of hearing the evidence from live witnesses;
3. The Court should accordingly be slow to interfere with decisions on matters of fact taken by the first instance body;
4. Findings of primary fact of the first instance body, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;
5. Where what is concerned is a matter of judgement and evaluation of evidence which relates to areas outside the immediate focus of interest and professional experience of the body, the Court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be ‘wrong’ or procedurally unfair.

When a fitness to practise panel has decided on the facts and passed the appropriate sanction. The registrant may seek to appeal the sanction on the basis that it is disproportionately harsh.

Only the strongest appeal cases will warrant interference from the High Court, because of the view held by the High Court that disciplinary committees are ‘the best possible people’ for passing judgement in cases of professional misconduct. So appeals, which can be expensive, carry the risk of the individual having to cover substantial court costs for both parties in the event that it is unsuccessful. This means that having good legal advice in the first instance a must.

6. NHS Trust Investigations

A doctor may find themselves facing a Trust level investigation or disciplinary hearing. These normally relate to allegations of misconduct or competence. The process and wider implications can be difficult to navigate or fully understand.

It’s essential when considering trust investigations what impact this may have on the subsequent GMC investigation process, as many NHS Trusts will report misconduct to the GMC following their internal process.

7. Inquests

A doctor may face having to attend an inquest to give evidence relating to the cause of death. In most cases this will be straightforward, however there are situations when there may be allegations against a Trust and/or a doctor about the cause of death.

The Trust’s lawyers will seek to protect the Trust and may have a conflict of interest that prevents them from also looking after an individual doctor. In that situation, a doctor will be better off having their own independent legal representation for an inquest.

8. Police investigations and criminal proceedings for doctors

Facing a criminal investigation is daunting for any professional person. There is a protocol of exchange of information between the police and the GMC, to ensure that information about allegations against a doctor is shared.

Given the devastating impact even a simple caution can have for a doctor, it is essential to obtain specialist advice. Not just from a duty criminal solicitor, but from a lawyer who understands both the criminal and regulatory impact for a doctor.

9. ARCP appeals

If a doctor doesn’t get the outcome they were hoping for in an ARCP review (Annual Review of Competence Progression), there is a limited window of opportunity to lodge an appeal. Specialist legal advice at this stage can be beneficial to advise about the most appropriate grounds for an appeal.

10. Protecting yourself with practical steps

These tips can benefit everyone, from trainees to consultants.

Keep detailed patient records

As a starting point, be sure to record every choice made during consultations and the reasons why. It can be time consuming, but can help with difficult situations later on. Notes are vital should any questions arise further down the line, either from the patients themselves or from investigatory panels.

Some scenarios will benefit from this action more than others, for example; when patients take some persuading about one particular course treatment.

Sorry shouldn’t be the hardest word

Mistakes happen, so when they do a swift and genuine apology can go a long way to appeasing a patient and reduce the risk that they’ll take their complaint further.

Offer reassurances that it was a one-off mistake and give a full explanation of what went wrong. If changes in policy or procedure were required as a result, explain these in detail to show that lessons have been learned and reflected upon.

Deal with it quickly

Moving fast to handle a complaint is the best way to resolve the problem before costly legal proceedings get started. They’ve taken the time to make the complaint so don’t be dismissive.

Instead, make it clear that you appreciate their complaint and that you share their serious concerns on the issue. Consider it an opportunity to improve how you do things in future.

11. Ask another question

Do you have another question relating to the GMC investigations process that hasn’t been covered in our guide? Feel free to ask Richard Nelson LLP’s GMC fitness to practise solicitors and we’ll endeavour to get back in touch with you as soon as possible.

Further Reading

• GMC Lawyers
• GMC Investigation FAQs
• GMC Fitness to Practise Guide

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