Legal Representation – Worth going it alone before the GMC?
It is technically possible to make it through a GMC investigation and MPTS hearing without legal representation. However a specialist medical regulatory law barrister will offer you the benefit of their objectivity, training, experience and knowledge – likely saving you a considerable amount of time and money, a huge amount of distress, and quite possibly your future career.
Worth going it alone – some things to consider
The GMC publishes numerous detailed guides for doctors who are brave enough to go it alone. Whilst it is technically possible to make it through a GMC investigation and MPTS hearing without legal representation, doctors must very carefully consider the implications of going alone. Below are a number important considerations.
MPTS Tribunal Hearings are daunting, prolonged and legalistic experiences
It is important that you understand what to expect if your GMC investigation leads to an MPTS tribunal hearing, and why the tribunal process is universally described as ‘daunting’. You will need to prepare for a trial in all but name – the hearing will be complex, formal and adversarial; the panel will be headed by a legally qualified chair; the process will be broad-ranging and lengthy.
It is also important to remember that MPTS hearings are overseen and managed by Legally Qualified Chairs. These chairs are chosen from a pool of very experienced legal practitioners – defined as “a barrister, chartered legal executive or solicitor in England and Wales; an advocate or solicitor in Scotland; or a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland”.
Are you at particularly high risk?
The plight of BAME doctors disproportionately impacted by GMC fitness to practise investigations and MTPS hearings is well founded. The GMC itself has acknowledged that “BAME doctors are twice as likely as white doctors to be referred to the General Medical Council” and “Doctors who trained outside the UK are two and a half times as likely to be referred compared to those who trained in the UK.”
The fitness to practise journey for BAME doctors can be more severe and one that might require the level of support, advice and representation that only a specialist lawyer can bring.
Opportunities for early resolution
GMC investigations are long, complex and involves a number of stages. The GMC acknowledge that its investigation process can take up to 12 months to conclude. It can take a further 10 – 12 months if the case is referred to the MPTS.
However, throughout the GMC fitness to practise investigation, there are numerous opportunities for doctors to engage and respond to allegations. Depending on the circumstances, it may be possible while at the Rule 7 and Rule 8 stage for your representative to persuade the case examiners that there is no case to answer – effectively stopping your fitness to practise investigation before it reaches the MPTS tribunal stage.
The possibility of an early resolution could save you a considerable amount of time and money, a huge amount of distress, and quite possibly your future career.
GMC & MPTS Guidance
What does guidance from the GMC and MPTS say about legal representation?
The GMC does not encourage you to complete the process without a solicitor or barrister – in fact in a number of clear public statements they strongly discourage doctors from self-representing:
“We strongly advise you to seek advice and be legally represented. However, if you decide to represent yourself at your hearing, you should take time to familiarise yourself with the hearing process.”
“Explore all possible opportunities to seek advice and get representation for the hearing.”
Going it alone – what are your chances?
A 2019 study peer-reviewed study published in the journal BMC Medicine found that doctors who lacked legal representation tended to receive more serious outcomes.
The study results showed clearly that both “non-attendance and lack of legal representation” were consistently related to more serious outcomes.”
A similar 2015 study revealed that – of the two outcomes, suspension or erasure – doctors with legal representation at hearings were significantly more likely to merely be suspended (72%), rather than struck off (28%). In contrast, 69% of self-represented doctors were struck off.
Engagement is key
Doctors who are brave enough to go it alone must carefully consider their engagement both at the right opportunities during the GMC investigation and before the MTPS hearing. There is clear evidence to show that non-engagement can often be fatal.
For example, the research referred to above (i.e. 2019 study) also concluded that “the outcome of MPTS decisions was consistently linked to doctors’ engagement with hearings rather than their personal characteristics.”
Higher courts have also consistently taken a dim view of non-engagement by doctors. For example in the case of R (Kuzmin) v General Medical Council, the High Court has ruled that a GMC tribunal is entitled to draw an adverse inference from a registrant’s refusal to give evidence.
Benefits of Legal Representation
The benefits and necessity of legal representation for doctors facing GMC investigation and MPTS hearings should be clear by now.
Depending on the circumstances, it may be possible for your representative to persuade the case examiners that there is no case to answer – effectively stopping your fitness to practise investigation before it reaches the MPTS tribunal stage.
Even if you cannot stop the case completely at this early stage, it may be possible to significantly reduce the number or severity of allegations you face – therefore reducing the range of sanctions that could be imposed.
“The GMC’s case against you will be made by a specialist barrister – so it is only appropriate to instruct a specialist yourself.”
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).
At Kings View, we have experience defending every level of doctor in all tribunals for the last 10 years and our barristers have additional qualifications from the Bar Standards Board, meaning that we can carry out all of the tasks that a solicitor can – including litigation.
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In July 2021, the Health and Care Professions Council’s (HCPC) council approved new health and character declaration guidance.
Kings View persuaded a NMC fitness to practise panel to impose the least serious sanction in a case relating to issue of drug administration and dishonesty.
Kings View were again successful in persuading the GMC case examiners that there was no case to answer.