When is a doctor’s history relevant to a GMC fitness to practise investigation?

Under certain circumstances, the GMC can take into account a doctor’s history even where previous cases resulted in no regulatory action.

A doctor’s fitness to practise history

When the General Medical Council (GMC) refers to a doctor’s fitness to practise history, it does so in the context of previous allegations and cases.

In brief, every time the GMC receives an enquiry about a doctor, it is formally recorded and kept against the doctor’s record. Some enquiries are closed without being promoted for investigation.

In other cases, however, cases are closed with formal action will have one of the following outcomes:

• Erasure
• Suspension
• Conditions
• Finding of Impairment (no further action)
• Undertakings
• Warning

Other cases are investigated, and following investigation, are closed without any formal action.

When might a doctor’s fitness to practise history be taken into account?

GMC guidance states:

“A doctor’s fitness to practise history should be taken into account when it is relevant to the current decision and fair in the circumstances for that history to be considered.”

The guidance goes on to say that a doctor’s fitness to practise history should be taken into account where current allegations are similar in nature or raise similar concerns.  As referred to above, a doctor’s fitness to practise history relates to actions the GMC might have taken in the past and the outcomes of these cases.

More specially, a doctor’s fitness to practise history could be sufficient to give rise to an allegation of impaired fitness to practise if: 

• the previous allegation is similar to the current allegation and/or paints a pattern of concern that, in totality, indicates a pattern of persistence that could give rise to an allegation of impaired fitness to practise.
• the reason that the previous case was closed relates to seriousness rather than the credibility of the allegation. Where the previous matter was closed because there was insufficient evidence to support it, it would not be appropriate to take it into account.
• If, however, there was sufficient evidence to support the previous allegation, and it closed on the grounds that it was insufficiently serious in itself to meet the threshold, then as evidence of a pattern it may be relevant to the current allegation.
• Previous incidents attributable to single clinical incidents or concerns that were closed on the grounds it was an isolated incident (e.g. unlikely to recur). If doctor has a previous history that relates to clinical practice, it will not be appropriate to consider a new matter as a single clinical incident unless the previous matter was found not proved, was a significant time ago, or where the nature of the incidents are very specialised and completely unrelated.

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Evidence of Insight and Remediation

Evidence of insight and remediation carries substantial weight and treated as mitigation in GMC investigations or by a tribunal.  However, the value of insight and remediation is weakened where the previous history relates to allegations that are similar to a current allegation.  A previous history of similar allegations would indicate a pattern of persistence, and means that consideration must be given to the question of remediation and/or the doctor’s insight.  In other words, if the current allegation is similar to a doctor’s fitness to practise history, it might indicate that the doctor has not gained insight and remediated their previous wrong doing.

This is not to say that fresh evidence of insight and remediation will carry no value.  This again will depend on the individual circumstances of each case and based on a clear and robust legal strategy.

The importance of rebuttal and evidence

GMC investigations are complex, governed by statutory rules and procedures.  There is a growing body of evidence and data pointing to the fact that doctors without legal representation face worse outcomes than doctors with legal representation.  The importance of legal representation is particularly important for doctors who have been subject to previous GMC investigations or allegations.  For these doctors, a clear and robust defence strategy will be key to good outcomes.

The GMC’s case is likely to include evidence of a doctor’s fitness to practise history, which will be counted as an aggravating factor in the GMC decision-making process (or if a case is referred to a contested hearing).

In particularly complex cases, a defence strategy and evidence will take time to gather and put in place.  It is always advisable for doctors to seek legal advice and representation at the earliest opportunity – ideally when they are advised by the GMC of an open investigation.

Things will go wrong, and we are here when you need us

Kings View has been advising and representing health care professionals for many years, and we know that despite their best efforts, some things do go wrong.  Through our experience, we know that the circumstances that lead to things going wrong are never straightforward.

It is a well-established fact that healthcare professionals who seek legal advice and representation at an early stage in any fitness to practise process, generally, receive better outcomes and lesser sanctions, if any.  We can advise on the right strategy to take and represent you before a fitness to practise hearing.

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).

You can speak to us today for a free, no obligation assessment of your case.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

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.