The GDC is currently consulting on a series of significant changes to its fitness to practise process. Key proposed changes include:
- The introduction of Case Examiners to undertake the functions of the Investigating Committee
- A power to agree undertakings with registrants
- Reforms to the regime for warnings
- Changes to the power of referral to the Interim Orders Committee
- A power to review fitness to practise decisions, including the decision to issue a warning
Many of the proposed changes mirror equivalent features of General Medical Council’s fitness to practise process. Broadly, the GDC hopes that the proposed changes will improve efficiency within its fitness to practise process. This hope is shared by practitioners, who also hope that the introduction of Case Examiners may bring greater flexibility and consistency to bear in the GDC’s decision making. This would make it easier to advise registrants on the approach to adopt, particularly early in a case, and also on the likely outcome. In the analysis that follows we focus on the proposed introduction of undertakings and changes to the existing system of warnings.
In cases where a registrant accepts that action is needed to improve the standard of their work, or where they accept their health is an issue that impairs their fitness to practise, the Case Examiners would be given a power to agree undertakings with the registrant. These comprise voluntary restrictions on registration aimed at mitigating the risk to patients, the public interest or the registrant themselves, whilst addressing the underlying issue which impairs their fitness to practise. At present no such restrictions can be agreed meaning all such cases would progress to a full fitness to practise hearing.
The consultation envisages that:
- The duration of the undertakings would be determined at the outset, not normally exceeding three years
- The undertakings will specify the evidence which the registrant is required to produce to demonstrate compliance.
The consultation also addresses the publication of undertakings.
- Undertakings would ordinarily be published on the register whilst in force together with a summary of the issues in the case.
- Information in respect of undertakings relating to a registrant’s health or private life would not be published
- Published undertakings would include details of any admissions made, together with those matters that are viewed as having a real prospect of being proved as well as a brief reference to the evidence and a short explanation as to why undertakings have been agreed.
- Publication would discontinue on revocation
- The Case Examiners would retain a discretion not to publish undertakings.
Under the proposed new scheme, the power to close a case with unpublished advice would remain. However, the GDC is proposing changes to the way in which warnings are issued. The draft guidance envisages warnings being issued in cases where there is no real prospect of a finding of current impairment but there is a real prospect of proving the factual allegations and of a finding of misconduct or deficient professional performance.
Under the proposed changes:
- Warnings would not be issued until the registrant had been served with notice of the proposed warning and given an opportunity to comment upon it and make submissions.
- Warnings would usually be imposed for a period of 24 months, which is considerably longer than at present.
- Save in exceptional circumstances warnings would be published on the GDC web based register until revoked.
- The Case Examiners would retain a discretion to determine the duration of warnings and whether they should be published. The guidance suggests that warnings may be imposed for a period of less than 24 months in cases where it is a first warning, an isolated incident or where the registrant has demonstrated insight and evidence of remediation.
A power to review warnings will be introduced in mid-April 2016, which will permit a warning to be reviewed, and potentially revoked, if the original decision was materially flawed or in circumstances where new information comes to light that would probably have led to a different decision. This is a welcome addition, as under the existing system the only means of a challenge to a warning is through an application for judicial review in the High Court entailing cost, uncertainty and delay.
The introduction of a power to agree undertakings is a pragmatic development. It should avoid the need for hearings in a significant number of health and performance cases where there is broad agreement between the Council and the registrant about the need for restrictions.
Under the proposed changes warnings will become more onerous for registrants. Currently, it is rare for warnings to be imposed for more than one year, although there is no prohibition on imposing them for longer. Only a proportion are published. The consultation does not identify an evidential foundation for the move to a default two year duration for warnings.
Whilst the proposals draw significantly on features of the GMC Fitness to Practise process there are notable, and welcome, differences. The GDC propose a different approach to publication in respect both of undertakings and warnings. The proposal to discontinue publication when the undertakings are revoked, or the warning expires, reflects the evolving jurisprudence in respect of the right to private life under Article 8 of the European Convention on Human rights. Although the guidance states that the GDC “will not publish any information or undertaking which directly relates to the health…of the registrant concerned”, it is unclear exactly what if any information would be published where undertakings are agreed in a pure health case. There will undoubtedly be concerns that whatever is published will permit others to read between the lines in a manner which may be prejudicial to the registrant.
The consultation is open to all and runs until 14 March 2016. Full details are available on the GDC’s website.
Fore more information please contact:
T: 020 7227 6702
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP 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.