GMC Warnings when Fitness to Practise is not Impaired

GMC Warnings

The General Medical Council (GMC) can take action if a doctor’s fitness to practise is impaired. Impairment can be found for a number of reasons, for example, misconduct, poor performance and/or a criminal conviction or caution.  Action by the GMC could include, amongst others, suspension or erasure from the medical register.

However, not all fitness to practise concerns and/or allegations would lead to a finding of impaired fitness to practise.  In certain circumstances, the GMC might conclude that, whilst a doctor’s fitness to practise is not impaired, there remains concerns about, for example, a doctor’s conduct.  Under these circumstances, the GMC may issue the doctor with a warning.

GMC warnings are issued in circumstances where the concerns amount to a ‘significant’ departure from Good medical practice, but fall just below the threshold for a finding of impaired fitness to practise.

There is no statutory definition of ‘significant’.  The GMC guidance on warnings provides some guidance on relevant factors, including:

• There has been a clear and specific breach of Good medical practice or supplementary guidance
• The particular conduct, behaviour or performance approaches, but falls short of, the threshold for the realistic prospect test
• A warning will be appropriate when the concerns are sufficiently serious that, if there were a repetition, they would likely result in a finding of impaired fitness to practise
• There is a need to record formally the particular concerns (because additional action may be required in the event of any repetition)

GMC Warnings – why do they matter?

First thing to say is that a warning does not prevent a doctor from holding a licence to practise and does not place any restrictions on their registration.

However, GMC research “has uncovered a good deal of evidence that suggests severe and long-term impacts are occurring for many doctors receiving warnings from the GMC. Many who received warnings report that their current and ongoing employment is adversely affected. Some have been unable to work again at all.”

GMC warnings are publicly visible on the GMC online register for two years, along with a summary of it issued it. After this, the warning will no longer be visible. However, and more importantly, the GMC does retain a record of it and can disclose it to employers on request.

The same research referred to above found that:

“Employers react to warnings in a variety of ways.  In some cases, warnings are ignored or even ridiculed. At the other extreme, the receipt of a warning leads to the end of the employment relationship with the doctor in question.”

GMC warnings can therefore have a disproportionate impact on a doctor’s career and reputation.  In practice, a GMC warning might be a factor in career, career progression and/or the determinative factor in job applications.

GMC Warnings – How to deal and respond to them

Doctors are not obliged to accept a warning.  A warning cannot be issued where the facts alleged are disputed by the doctor.

As already mentioned, doctors have a right of reply before a warning is issued. Doctors have up to 28 days to respond to a request by the GMC, which present the doctor with the opportunity to argue their case.  Since a doctor’s response could lead to a decision to close the investigation with no further action taken, careful thought and approach should be taken. 

It is strongly advisable that doctors seek expert legal advice because careful consideration should be given to the evidence and how this is presented in the response.  This is particularly important because Case Examiners (and the Investigating Committee) can make onward referrals to a fitness to practise hearing.

Secondly, a doctor can exercise their right to an oral hearing before the Investigation Committee.  This will provide the doctor with an opportunity to present evidence and arguments in person (or virtually via video link). Doctors have a right to be represented before the Investigation Committee.  It is again strongly advised that doctors seek expert legal advice and representation.

The Investigation Committee has the same powers as Case Examiners and common law has confirmed that the Registrar of the GMC does not have the power to overrule/review the Investigating Committee, where it imposes a warning.

It should be clear from the above that GMC warnings are significant notwithstanding the fact that they do not indicate that a doctor has impaired fitness to practise.  GMC warnings have the real potential to have a severe and adverse impact on a doctor’s reputation and therefore career.

Good Medical Practice – when was the last time you actually read it?

The Good Medical Practice is the key document in which the GMC sets out your ethical duties as a doctor, and it is used as a benchmark in virtually all tribunal decisions.

When listing factors that help to determine the seriousness of sanctions that would be appropriate, the top item on the list is:

“The extent to which the doctor departed from the principles of Good Medical Practice.”

But despite its importance, many doctors have only an arms-length familiarity with the contents of GMP.

Good Medical Practice is a short but essential piece of reading – it won’t take long, so do your GMC licence a favour and make time for it tonight.  ‘Good medical practice in action’ also provides online case studies, which help to bring the guidance alive. There are over 70 further topics and each has a few scenarios to try out.