Employer Referrals – What doctors should know

Responsible Officers can make a referral to the GMC if there have been “serious concerns” raised about a doctor’s fitness to practise.

Responsible Officers

A Responsible Officer (ROs) is a statutory position responsible and accountable for the local clinical governance processes in their particular healthcare organisation (also referred to as designated body). ROs are responsible for focusing on the conduct and performance of doctors, including evaluating a doctor’s fitness to practise, and liaising with the GMC over relevant procedures.

If a concern is raised about the fitness to practise of a doctor, ROs have a responsibility to take all “reasonable steps” to investigate those concerns, and where appropriate, refer those concerns to us. Fitness to practise concerns, in this context, generally refers to circumstances where a doctor’s behaviour poses a risk to patients, public confidence in the profession or to proper professional standards and conduct.

Referral to the GMC

The GMC will assess the ROs referral against its threshold guidance. GMC guidance to ROs explain that its threshold for referral “is likely to be met” when certain features occur and, it is no longer appropriate to manage the concerns locally, including (but not limited to):

doctor’s conduct or performance falls below the standard set out in Good medical practice and (including where attempts to improve the doctor’s performance locally have failed) there remains an unacceptable risk to patient safety.
a doctor about whom the responsible officer, employer or contractor has developed significant concerns disconnects from the responsible officer or leaves the employer or contractor’s employment and the responsible officer, employer or contractor is not confident that alternative safeguards are in place.
local measures to address the concerns have failed, either because the doctor is not complying with them or the concerns are too significant to be remediated at a local level.

Local investigations

The vast majority (75% plus) of complaints referred to the GMC are closed at the triage stage. Of increasing importance is an emphasis on local investigations, and the expectation is that a thorough investigation be undertaken and issues managed locally before considering a GMC referral. The GMC itself states that “the majority of concerns can be safely managed at a local level”.

If a referral is made to the GMC, in general, they will close cases without any investigation where the issues relate to:

minor motoring offences not involving drugs or alcohol such as speeding or traffic light
offences
a delay of less than six months in providing a medical report
a minor non-clinical matter such as rudeness
a complaint about the cost of private medical treatment

However, certain allegations are “likely” to always meet the GMC threshold, including:

a sexual assault or indecency
sexual or improper emotional relationships with a patient or someone close to them
violence
dishonesty
unlawfully discriminating in relation to characteristics protected by law
knowingly practising without a licence
gross negligence or recklessness about a risk of serious harm to patients.

The very well published case of Dr Manjula Arora and the GMC’s (mis)handling of her case has driven home the importance and need to manage fitness to practise issues locally before making a referral to the GMC. The review of Dr Auror’s case, concluded that “the GMC should continue to encourage a culture which seek to resolve issues locally first, if possible” and “Regulators should judge their success not by how many fitness to practise referrals they handle but in how they support local systems towards local resolution and remediation when needed.”

The GMC’s guidance to ROs and employers state:

In order to make sure that referrals are accurate and fair, you may first need to:

complete your own local investigation and consider the conclusions
understand the outcomes of any external investigation and/or
take any other reasonably practicable steps necessary to understand whether the concerns raise a question about the fitness to practise of the doctor.

Kings View can advise and assist doctors facing internal fitness to practise investigations and proceedings. Contact us today for a free, no-obligation, case discussion.

Context

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”.

“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?

What to report to your employer

There is a requirement on doctors to report certain details to the employers. Generally speaking, doctors have to tell their employers, when/if:

The GMC has placed restrictions on their licence to practise (for whatever reason);
You have restrictions on your practise or removed you from clinical duties as a result of a fitness to practise concern or referred you to the GMC; and or
If you have been involved in an incident outside of work/training that has or may result in a criminal investigation or charge.

Legal Representation and advice

With over 30 years combined experience, Kings View Chambers have established itself as one of the best when it comes to fitness to practise defence. We fully understand that fitness to practise defence is not merely about processes and procedures. 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 are proud to be rated ‘excellent’ by our clients. Our commitment to client care is genuine in both seeking the very best outcomes for our clients, but also ensuring we do what we can to support them through the process.

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.

Worth going it alone before the GMC?

MPTS Legal Representation – Does it Pay?

Our GMC & MPTS Case Success

In upholding the appeal, Alan Bates, sitting as a Deputy Judge of the High Court, said:

Failure to assess witness credibility and reliability The panel did not sufficiently evaluate the general credibility and reliability of key witnesses, whose evidence was essential to the charges. It failed to consider factors such as contradictions between witnesses' accounts and whether their testimonies should be approached with caution. This omission undermined the panel's ability to justify its conclusions.
Lack of explanation for preferred evidence The panel failed to provide adequate reasons for preferring the complainants' evidence over the appellant nurse's and the paramedic's. Simply stating a preference for certain witnesses' accounts without detailed justification left the appellant without a clear understanding of why her evidence was rejected.
Errors in evidence evaluation The panel assessed each charge in isolation without considering broader patterns or contextual evidence. It failed to recognize that inaccuracies in one allegation (contradicted by CCTV) could cast doubt on the reliability of witnesses' accounts in other allegations, leading to flawed conclusions.
Improper handling of contextual evidence The panel neglected to evaluate the behaviour of the complainant nurses during the investigation, which was relevant to determining their credibility. Additionally, it overlooked the appellant nurse's claims that the allegations were fabricated to remove her from her managerial position.
Insufficient reasoning for findings The panel provided inadequate reasoning for its findings of misconduct. It did not fully explain how the evidence supported its conclusions, including why the NMC had met the burden of proof for each disputed allegation. This failure left the appellant with unsubstantiated conclusions, undermining the credibility of the process.

Lessons

This case highlights several critical considerations for fitness to practise tribunals. One key lesson is the importance of thoroughly evaluating the credibility and reliability of witnesses, particularly when their testimony is central to the charges. Without such assessments, the accuracy and fairness of the tribunal’s findings can be compromised. Witness accounts must be examined not only in isolation but also in a broader context, taking into account patterns and inconsistencies to achieve a holistic evaluation.

Additionally, tribunals must provide clear and rational reasoning for their decisions. Merely preferring one witness’s account over another without detailed explanations can lead to procedural unfairness. Ensuring transparency in decision-making fosters trust in the process and supports robust outcomes. Tribunals must also maintain procedural fairness by upholding the burden of proof on the prosecuting body. Accused parties should never feel pressured to disprove allegations, as fairness is crucial to preserving the system’s integrity.

Finally, the impact of procedural delays cannot be underestimated. Prolonged proceedings can cause undue harm to the accused, affecting their career and reputation. Timely resolutions are essential to upholding justice while minimizing unnecessary stress on all parties involved. By focusing on these principles, fitness-to-practise tribunals can enhance the fairness and effectiveness of their proceedings.

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.