Contextual factors in GMC fitness to practise investigations

“The effects of contextual factors” are relevant in GMC fitness to practise investigations. To what extent are contextual factors relevant, and how can a doctor make their case?

The meaning of fitness to practise according to the GMC

Fitness to practise, in simple terms, means that a doctor must be competent to practise safely, establish and maintain effective relationships with patients and colleagues, respect patients’ autonomy, act responsibly, be honest, and practice within their own limitations.

When these, and other, qualities are called into question, the General Medical Council (GMC) may open a fitness to practise investigation.

Doctors should be aware that not all mistakes and/or errors will result in a GMC investigation. GMC guidance states that “occasional one-off mistakes” are “unlikely in themselves to indicate a fitness to practise problem”. However, “serious or persistent failures” are likely to put a doctor’s registration at risk.

More specifically, a question of fitness to practise is likely to arise if a doctor’s “serious or persistent failures” has:

harmed patients or put patients at risk of harm;
shown a deliberate or reckless disregard of clinical responsibilities towards patients;
abused a patient’s trust or violated a patient’s autonomy or other fundamental rights; and/or
behaved dishonestly, fraudulently or in a way designed to mislead or harm others.

Contextual Factors in Fitness to Practise

“The effects of contextual factors” are relevant in GMC fitness to practise investigations. The GMC indicates that contextual factors are taken into consideration from the outset of a complaint or allegation (i.e. triage stage) against a doctor.

For example, in its guidance to responsible officer (ROs) referrals, the guidance suggests that ROs must address “whether the effects of contextual factors have been equally and fully considered for all doctors” referred by it. The guidance goes on to give the following examples:

What impact did poor lighting have on the doctor’s action?
How did an IT failure contribute to a particular error?
How did poorly designed packaging of a drug create confusion?
How affected was a doctor by inadequate PPE?
What part did fatigue play?

Why are ‘contextual factors’ important?

Mistakes, often, do not happen in isolation and there are usually other factors that contribute to mistakes such as staff and time pressures and IT faults etc. Focussing on the individual means that contextual factors go unnoticed and are ultimately not addressed.

It is also important to say that contextual factors are often beyond the control of doctors. Focussing on the individual will therefore make the process fundamentally unfair and unjust. Research found that doctor “want to be certain that all contextual factors had been accounted for by the GMC before accepting individual responsibility”.

Importance of Engagement and Legal Advice at an Early Stage

We have written extensively on the importance of engaging with regulators during fitness to practise investigations. Aside from the general expectation on doctors to engage with the GMC during an investigation, engagement might also result in the GMC closing an investigation without the need for a prolonged and expensive fitness to practise hearing.

At various stages during a GMC investigation, doctors will have the opportunity to submit responses and evidence to the GMC. These are important opportunities to, for example, provide relevant evidence and/or information relating to contextual factors.

It is important for doctors to understand that obtaining the type of information and evidence that will support a case, relating to relevant contextual factors, is likely to be a long and potentially complex process and early legal advice is important.

Worth going it alone before the GMC?

MPTS Legal Representation – Does it Pay?

Our GMC & MPTS Case Success

Is legal representation the answer?

It is widely accepted and proven that legal representation makes a real difference to the outcome of investigations and results in lesser sanctions for doctors.

What is also unquestionably clear is that GMC investigations and MPTS hearings are complex, daunting, prolonged and legalistic leaving doctors stressed and anxious. Where legal advice and representation can have the biggest impact on this, is helping doctors understand the process, what to expect and how to engage with the GMC during an investigation and hearing.

Research has shown that registrant’s engagement and legal representation can impact on decisions about seriousness, and that the lack of legal representation has been identified as being associated with more severe sanctions outcomes in fitness to practise cases, stating:

“Legal representation was seen as important by participants because legal advice could support and guide registrants through the FtP process, which is complex and legalistic. Legal advice was seen as important in aiding registrants to understand regulators’ expectations, especially in terms of the need for registrants to demonstrate insight and perhaps to show evidence of remediation activities. Lack of legal representation was, therefore, seen to potentially have an impact in terms of the seriousness of the outcome for registrants who are perhaps unaware of how to present their case to best effect.”

A compassionate approach to legal representation

The right legal advice and representation is not just about the legalities and technicalities of a case. Our barristers fully understand the stress and anxiety that doctors experience during prolonged GMC investigations.

We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.

We never lose sight of the human aspects of FtP investigations and hearings. We will always give an open and honest assessment of cases, but we will marry that with an approach that also supports health and care professionals through the duration of a case.

“I was not optimistic about the case, I felt that it is a lost case that we couldn’t do much about and especially just before the start of the trial I lost my confidence and was very nervous. Mr McCaffrey was there to prove me wrong. He turned everything around in a victorious , panegyric manner. I was stunned.” – CL

Catherine is professional, empathic and very knowledgeable. She provided all the necessary assistance throughout the long thorough investigation. – AR

A colleague recommended me to Catherine. She was very experienced , professional, empathetic , non-judgemental and listened to me. – Mel

I found myself consumed with dark thoughts, isolated and afraid. Stephen worked with me and slowly but surely formulated a plan not to just to fight my case and win, but to build me back up bit by bit so as to prepare me to face external scrutiny and present with confidence to panels where this was necessary. – FJ

What you can Expect when Instructing Kings View

All clients are entitled to an initial, no obligation and free telephone consultation about their case. During this consultation, we will outline the stages and next steps, including indicative timeframes and fixed price quotations for preparation and representation and confirmed in writing at each and every stage.

We understand that timescales are entirely dependent on the stage you are at in proceedings, what work needs to be done and dictated by internal investigations or hearing dates. We always meet those timescales however should more time be needed, then we will apply for such on your behalf and with your permission.

Contact us today for a no obligation and free telephone consultation about your case in the knowledge that you are speaking to one of the best in the business.

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.