Doctors facing allegations of violence & dishonesty

The GMC has changed its guidance for circumstances where allegations of dishonesty and violence might not impact on public safety.  We look at the guidance and the implications for doctors.

Guidance when violence and dishonesty may represent a lower risk to public protection

GMC decision makers will now be able to weigh the full circumstances of a concern earlier in the fitness to practise process to assess the overall risk to public protection including to public confidence in the profession– meaning some concerns may not need to be investigated or referred to a tribunal. 

Concerns that fall under the guidance are those that are minor in nature and did not impact patient care. Allegations of violence and dishonesty which raise a risk to public protection, including where there is a history of repeated behaviour, will continue to be investigated.

GMC provisional enquiries & Triage

As outlined above, the decision-making process happens at an early stage in the GMC’s fitness to practise process, also referred to as provisional enquiries and triaging.

Simply put, when the GMC receives an initial complaint or allegation, it will look at the information and evidence against a set of criteria to determine whether the concern appears to raise a question whether the doctor’s fitness to practise is impaired. This is known as the triage test.

Where the information and evidence meets the criteria, the GMC will move to provisional enquiries. 

During the provisional enquiries stage, the GMC will identify and assess the information and evidence.  The GMC will write to the doctor to inform them of the complaint or allegation and giving them a right to reply if they so wish.  At the provisional enquiry stage, the GMC may also seek information and evidence elsewhere.

During provisional enquiries, the GMC will consider the nature and seriousness of the allegations, the evidence obtained through our provisional enquiries and the risk of the conduct being repeated and placing patients at risk and decide to either:

• close the enquiry with no further action
• close the enquiry but, in addition, notify the Responsible Officer (RO) or notify Employers process
• promote the enquiry to a full investigation.

Provisional enquiries are normally concluded within 2–3 months.

Triage threshold test

The GMC will determine whether the concern appears to raise a question whether the doctor’s fitness to practise is impaired, also known as the triage test.

The test applied to determine whether the triage test has been met involved the GMC asking itself, during the provisional enquiries stage:

“Whether the allegation appears to raise a question as to whether the doctor’s fitness to practise is impaired.”

In other words, the triage test focuses on whether the issues are such that they require investigation by the GMC. Although this test applies universally, the factors to be considered by decision makers will vary depending on the nature of the concerns and the information we have gathered through different provisional enquiry streams.

Violence and Dishonesty

There are certain categories of cases where the allegations, if proven, would normally lead to a presumption of impaired fitness to practise.  This includes allegations of violence and dishonesty.  However, in the case of violence or dishonesty allegations, this presumption may be rebutted if the nature of the conduct does not indicate that the doctor poses a risk to public protection.

Whether the doctor poses a risk to public protection and the extent of that risk will be determined on a case-by-case basis.  Conduct that is unlikely to raise a question of impaired fitness to practise, and therefore a full investigation:

• will be minor in nature and less likely to pose a risk to patients, public confidence or proper professional standards and conduct
• will usually have occurred outside the doctor’s professional practice
• will often have been investigated by the police or another relevant body, such as the doctor’s employer.

Violence

The guidance states that allegations of violence are less likely to pose a risk to patients, public confidence or proper professional where:

1. the alleged violence was outside a professional context
2. the alleged violence was limited in nature rather than sustained or repeated
3. no weapons were involved
4. no physical, emotional or psychological harm was caused
5. the alleged violence was not directed towards a vulnerable person*
6. the doctor has no history of violent behaviour†
7. there is no evidence on the face of it indicating that the doctor may repeat the alleged violence in the future
8. there is no evidence on the face of it that the alleged violence was motivated by hostility towards someone’s race, sexual orientation (or perceived sexual orientation), disability, sex, gender (or presumed gender identity), religion or age
9. any investigation conducted by the police or another relevant body, such as the doctor’s employer, resulted in no formal action or a single warning by the employer.

Dishonesty

Similarly, allegations of dishonesty are less likely to pose a risk where:

1. the alleged dishonesty was outside a professional context
2. the alleged dishonesty was a one-off, isolated incident and not persistent or repeated over a period of time
3. the value of the financial or other material benefit derived by the doctor from the alleged dishonesty was low
4. the doctor has no history of dishonesty*
5. there is no evidence on the face of it indicating that the doctor may repeat the alleged dishonesty in the future
6. the alleged dishonesty was not directed towards a vulnerable person†
7. any investigation conducted by the police or another relevant body, such as the doctor’s employer, resulted in no formal action or a single warning by the employer.

Things will go wrong, and we are here when you need us

Kings View has been advising and representing health care professionals for many years, and we know that despite their best efforts, some things do go wrong.  Through our experience, we know that the circumstances that lead to things going wrong are never straightforward.

It is a well-established fact that healthcare professionals who seek legal advice and representation at an early stage in any fitness to practise process, generally, receive better outcomes and lesser sanctions, if any.  We can advise on the right strategy to take and represent you before a fitness to practise hearing.

Kings View 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).

You can speak to us today for a free, no obligation assessment of your case.

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.