Warnings given at fitness to practice investigations – should you challenge them?
For doctors who are advised that the GMC’s Case Examiners are “minded to warn” them about their behaviour, one of the most important questions to consider is whether they should contest the warning and what the chances are that the situation will be made worse as a consequence of such a challenge. Such challenges are considered by the Investigation Committee of the GMC.
What is a warning and what is its purpose?
The GMC Guidance on warnings states the purpose of a warning is to, “indicate to a doctor that any given conduct, practice or behaviour represents a departure from the standards expected of members of the profession and should not be repeated. They are a formal response from the GMC and MPTS tribunals,” with the specific aim of reminding doctors that, “their conduct or behaviour fell significantly below the standard expected and that a repetition is likely to result in a finding of impaired fitness to practise.” [i]
Importantly, they also have the further objective of highlighting to the wider profession that the conduct of the doctor in question fell below a standard that is deemed acceptable. As a formal warning is not only disclosable to an employer but is also published and publicly available for 2 years, doctors who accept a warning often suffer severe adverse impacts to their employment or private practice.
In a previous article we discussed issues surrounding warnings given at the conclusion of GMC Fitness to Practice investigations which touched on the considerations that are required prior to accepting a formal warning or challenging it in submissions to the Case Examiner.
Possible outcomes of a challenge
There are three possible outcomes upon challenging a warning at the Investigation Committee:
- Closing the case with no further action (no warning given).
- Imposing a warning (this may be as originally worded or amended).
- Referring the matter to a hearing before the Medical Practitioners Tribunal [MPT].
The final of those possibilities may serve as a significant disincentive to contest a warning.
Challenging a warning – the statistics
A Freedom of Information Act request by this firm to the GMC has produced figures that merit consideration.
The figures showed that between 2016 and 2018 there were 43 cases where warnings were challenged and considered by the GMC Investigation Committee. Of these no further action was taken in 20 of the cases, with 23 warnings issued. Of the 23 warnings that were issued 15 of these remained in the same terms as the initial warning proposed by the Case Examiners.
It is perhaps significant that none of the appeals resulted in the matter being referred for a hearing before the MPT.
Proceed with caution
Whilst these figures would suggest that it is nearly always worth challenging a warning, they should be treated with caution.
The positive statistics may reflect selection bias; the risks associated with a challenge make it more likely that those who have a good chance of success are over-represented in the cases, as compared with doctors whose objections are more tenuous.
A careful and objective consideration of the facts is required prior to challenging the imposition of a formal warning so as to ensure that the situation is not made any worse.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.