Gathering Information During a Complaint
At this stage your organisation or regulator will be carrying out preliminary investigations to decide if the complaint or incident needs to be formally investigated.
They will be contacting you and others involved in the event to gather the facts and understand what the next steps should be. This may involve asking for witness statements, copies of records and reports from you, people who know you, work with you or provide health care to you.
Your defence organisation will be available to help you navigate this stage and can offer lots of guidance and support.
If your incident is going to be investigated internally your organisation will have information available to you on the steps and procedures they follow. This will differ between primary and secondary care so ask for a copy of the policy so you know what to expect.
Most regulators follow a similar pathway if they decide to investigate and below we work through what to expect if the GMC will be investigating your case.
Referral to GMC
This occurs by:
- Member of the Public
- Doctor or Colleague
- Responsible officer
- Other organisations and Regulatory bodies locally or Overseas
- Referring doctor, him/herself.
Out of the referrals, 80% of cases are closed without investigation since the matter has not passed the threshold test when applied.
GMC will investigate the following matters
- Serious repeated mistakes and failure in medical treatment by the doctor. (Poor performance or Misconduct)
- Fraud or Dishonesty. (Misconduct or Criminal Conviction or Caution)
- Discrimination against patients or colleague. (Misconduct)
- Violence, Sexual Assault, Indecency (sexual relationship) and Driving offences. (Criminal Conviction or Caution)
- Breach of patient confidentiality. (Misconduct)
- A determination by another regulatory body.
- Insufficient knowledge of English.
- Physical or Mental ill-health may impact a doctor’s ability to practice medicine. (Health)
What should a doctor do, when referred to the GMC?
- Continue practice, unless an Interim Orders Tribunal issues an Interim Suspension Order.
- Tell your employer that you are under investigation by the GMC and ask them about the possibility of providing a reference for you, if applicable.
- Seek advice from your professional organisation, trade union or lawyer as a priority and before responding to any correspondence which could prejudice your case.
- Cooperate with and engage in the process throughout, supplying any responses and references by the stated deadlines.
- Keep the GMC informed of any change in your personal contact details.
How will a doctor know, he or she is under a GMC investigation?
The GMC will write to the doctor, to notify that a GMC investigation has commenced.
The GMC will outline the nature of their investigation and will invite comments from the doctor.
Any comments should be sent within 28 days.
This letter is referred to as a "Rule 4 letter".
Rule 4 letter
If a doctor receives a Rule 4 letter from the GMC, he or she should contact his or her defence organisation for urgent advice. A tactical decision will need to be made as to whether to respond to the GMC's investigation at this early stage.
If it is appropriate to respond to the allegations at this stage, the content of the response needs to be prepared carefully. Any comment made at this stage in a GMC investigation will be compared with later submissions and scrutinised against evidence subsequently collated. Any inconsistencies will be detrimental to a doctor's case.
At this stage, the GMC will not disclose the full facts of the allegation, as they will not have collated all the evidence (Primary Disclosure like in any litigation process). Therefore, there will be a later opportunity to respond, once the precise nature of the allegations and the evidence gathered in the GMC investigation has been disclosed.
Rule 7 letter
Once their (GMC) investigation has been concluded, the GMC will write to the doctor again. This time GMC will disclose specific allegations (Secondary Disclosure) and they will provide a copy of all the evidence that supports their case. This letter is referred to as a 'Rule 7 letter.'
On receipt of a Rule 7 letter, most doctors should, at this stage, respond to the allegations in writing. It is essential to get legal advice from an experienced GMC lawyer before submitting any written response to the GMC. The defence lawyers have the advantage of being objective and their experience enables doctors to find the appropriate tone for the response.
Case Examiner's review
On receipt of a Rule 7 response, or when the time limit to respond expires, the Case Examiners will consider the allegations and decide how to progress the GMC investigation.
At this stage, the Case Examiners may:
- Conclude the case with no further action;
- Issue a warning;
- Agree undertakings with the doctor;
- Refer the case to the Medical Practitioners Tribunal Service (MPTS) for a Fitness to Practise Panel Hearing to be listed.
NB: Case examiners includes one lay and medically qualified personal.
Warnings as an outcome of an investigation
After an investigation, the GMC may issue a warning if a doctor has been found to have significantly departed from the standards set out in Good Medical Practice, but their fitness to practise is not impaired.
If a warning is offered, a doctor will need to decide if they wish to accept it as a resolution. If a doctor does not wish to accept a warning, they can ask to be referred to the GMC Investigation Committee.
There are pros and cons to asking the GMC’s Investigation Committee to review whether a warning is necessary.
If a doctor has received an offer of a warning as an outcome of a GMC investigation then the doctor should contact their defence organisation or a tribunal lawyer for urgent advice on how best to proceed.
GMC Investigation Committee
If a doctor does not wish to accept a warning, for example, they dispute the factual allegations, they can refer their case to the GMC Investigation Committee. The GMC Investigation Committee can hear evidence, make a factual finding and decide if a warning is appropriate, or if the case should be concluded with no action.
In exceptional circumstances, a GMC Investigation Committee can refer a case to the MPTS for a Fitness to Practise Panel hearing, but only if new evidence has come to light during the hearing.
Undertakings as an outcome of a GMC investigation
The GMC's Case Examiners can agree undertakings with a doctor as an outcome of a GMC investigation. An undertaking is a legally enforceable agreement between a doctor and the GMC, where a doctor agrees to take or refrain from specified action. An undertaking is regarded as a consensual disposal of a GMC case. However, the ramifications of undertakings are serious and should not be agreed to without proper consideration.
Criminal proceedings can leave doctors in a vulnerable situation with the GMC, especially if they have already been advised to accept police cautions without appreciating the full ramifications of doing so.
It is, therefore, better for doctors to obtain advice on criminal investigations and proceedings from a medical defence organisation, rather than from a general criminal lawyer. The medical defence lawyers understand both the criminal proceedings and the GMC and are therefore acutely aware of how one can impact on the other. Their advice will be given mindful of the significance of a criminal conviction or caution to a doctor, both personally and professionally.
The Medical defence organisation works collaboratively with a specialist lawyer who can advise a doctor on the potential for an application to remove a criminal caution from your record where appropriate. If successful, such an application will improve the position for a doctor when dealing with the GMC.
MDU - Medico-legal guide to Fitness to Practice procedures
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