What difference does legal representation make in fitness to practise proceedings?
What difference does legal representation really make in fitness to practise proceedings?
The case for legal advice – data and research
We know, from over a combined 30 years’ experience representing doctors and other medical professionals, that legal advice and representation does make a positive difference. The difference having legal advice makes is also backed up by an increasing body of data and research.
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.
More recently, research published concluded that:
“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.”
Engagement is key
Key to good outcomes for doctors and other healthcare professionals also include meaningful engagement with their regulator. Engagement with regulators is a key consideration when considering, for example, any aggravating and mitigating factors in a fitness to practise case.
Furthermore, not attending the hearing meant that registrants were not able to defend themselves against concerns raised, and panels were more dependent on the statements of witnesses. The registrant’s credibility and reliability as a witness, demonstration of insight, remorse and regret, and any remediation which has taken place are also important aggravating and mitigating factors.
Legal representation also plays a crucial role in helping doctors and other healthcare professionals gain a clear understanding of complex legal processes and procedures. Research by the General Dental Council, for example, concluded that:
“The extent to which a registrant engages with the regulatory process, from initial complaint to the final hearing, has been recognised as vitally important to the severity of sanctions. The 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.
“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.”
BAME Health & Care Professionals
It is a well known and recorded fact that certain groups are over-represented in fitness to practise referrals mainly linked to “country of origin or ethnicity (i.e. BAME) or language proficiency” of the professionals. The demographic and professions that are most over-represented were found to be male, older, overseas-trained, doctors, dentists, chiropractors, social workers and paramedics.
Doctors and other healthcare professionals who are at particular risk or vulnerable due to any of the factors referred to above should carefully consider the need for legal representation. It is a sad fact that certain professional groups and demographics are overrepresented in fitness to practise investigations and, linked to this, face poorer outcomes and harsher sanctions.
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.
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.
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.
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