Things doctors can do to avoid a GMC referral

One of the most important steps to protect a doctor’s medical licence is making sure they avoid common types of misconduct allegations.

You should expect to be referred to the GMC at some point in your career

If you are a doctor working in the UK today, statistics show you should expect to be the subject of a GMC complaint at some point in your career. The GMC view such complaints as an ‘occupational hazard’, however most doctors who approach us for legal advice and support have little insight into this process and are ill-prepared for this extremely stressful eventuality.

Misconduct in Fitness to Practise

In order to understand misconduct, you must firstly understand what fitness to practise means. The GMC defines fitness to practise as:

“doctors must be competent in what they do. They must establish and maintain effective relationships with patients, respect patients’ autonomy and act responsibly and appropriately if they or a colleague fall ill and their performance suffers.”

It follows that if a doctor’s fitness to practise is impaired, it means there are concerns about their ability to practise safely and effectively. The types of cases the GMC will consider are those that question whether a doctor’s fitness to practise is “impaired” and this includes, amongst other things, ‘misconduct’.

What is misconduct?

In general, misconduct is defined as “behaviour that falls short of what can reasonably be expected of a professional.”

There is no explicit legal definition of ‘misconduct’ in statute, in so far as it relates to fitness to practise. It is however defined in common law (i.e. senior court judgements).

By way of a general overview, in Meadow v General Medical Council [2007], the Court of Appeal made clear that “misconduct” should not be viewed as anything less than “serious professional misconduct”.

In Roylance v GMC [1999], the Privy Council identified “the essential elements of the concept” of misconduct:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word “professional” which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word “serious”. It is not any professional misconduct which would qualify. The professional misconduct must be serious.”

For fitness to practise to be found impaired, the courts have made clear that the misconduct must “serious professional misconduct”.

Things doctors can do to avoid a GMC referral

One of the most important steps to protect a doctor’s medical licence is making sure they avoid common types of misconduct allegations.

Record keeping – Doctors must keep full, accurate and contemporaneous clinical records. GMC guidance states that doctors should:

Keep clear, accurate and legible records
Make records at the time the events happen, or as soon as possible afterwards
Record your concerns, including any minor concerns, and the details of any action you have taken, information you have shared and decisions you have made relating to those concerns

Duty of Candour – All healthcare professionals have a duty of candour – a professional responsibility to be honest with patients when things go wrong.

A joint statement by medical regulatory bodies sets out the following practical approach to the duty of candour:

tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong;
apologise to the patient (or, where appropriate, the patient’s advocate, carer or family);
offer an appropriate remedy or support to put matters right (if possible); and
explain fully to the patient (or, where appropriate, the patient’s advocate, carer or family) the short and long term effects of what has happened.

Apologising does not necessarily mean that you are admitting legal liability for what has happened. This is set out in legislation Compensation Act 2006 (England and Wales) and the NHS Litigation Authority also advises that saying sorry is the right thing to do.

Insurance – It is well understood that doctors need to ensure that you are indemnified in order to practise medicine in the UK – originally because it was a part of GMP, and more recently when it was given a stronger statutory footing. However, you really need to ensure that your indemnity is adequate and appropriate – which will depend on your precise circumstances.

The GMC does not really elaborate on what constitutes ‘adequate and appropriate’ – suggesting instead you speak to a medical defence organisation or other insurer.

Use of Social Media – Social media can blur the boundaries between public and private life, and doctors must be careful to maintain professional boundaries when using social media. It is important to note that the standards expected of doctors do not change because they are communicating through social media as opposed to face-to-face or through other traditional media.

The GMC has produced guidance for doctors on their use of social media. When using social media, doctors must be careful to ensure social and professional boundaries do not become unclear or blurred. Doctors must ensure they follow the GMC’s Maintaining a professional boundary between you and your patient when using social media.

Professional Boundaries – The nature of the patient/doctor relationship is such that doctors are in a position of trust with patients, often vulnerable either physically or mentally.

There is no defined definition of professional boundaries, but generally speaking, professional boundaries are the legal, ethical and regulatory limits to the healthcare professional/patient relationship that maintains trust, patient safety and protection and public confidence in the profession.

Although most often associated with improper emotional relationships or allegations of sexual impropriety, breaching professional boundaries can also encompass expressions of personal beliefs, financial conflicts of interest, and physical harm.

Conflicts of Interest – Doctors should carefully consider actual or potential conflicts of interest and take steps to mitigate risks to patient care and reputational damage to public trust. Types of conflict of interest include, but not limited to, direct financial interest, indirect financial interest, non-financial or personal interests, conflicts of loyalty, and/or conflicts in professional duties and responsibilities.

Prescribing – Linked to the conflict of interest point above, GMC guidance makes clear that doctors must not self-prescribe or prescribe to family and/or friends unless, 1. “no other person with the legal right to prescribe is available to assess and prescribe without a delay” and/or “emergency treatment is immediately necessary to avoid serious deterioration in health or serious harm.”

Communication – we cannot overemphasise the importance of good communication with both patients and colleagues. The Good Medical Practise makes clear that doctors must “listen to patients, take account of their views, and respond honestly to their questions” and also “work collaboratively with colleagues, respecting their skills and contributions.”

Kings View Barristers

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.

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.