Warnings at the conclusion of GMC Fitness to Practise investigations

Among the biggest fears for a professional under investigation by their statutory regulator must be the prospect of facing a formal disciplinary hearing and all that the experience entails.

In those circumstances they may be tempted to accept a formal warning from the regulator, but careful consideration ought to be given to whether that is in fact a safe and satisfactory resolution. We consider the position in the context of the General Medical Council’s procedures.

Legal tests

The statutory framework and the Council’s guidance on Warnings for Case Examiners are rather broad. The former affords the Case Examiners with a wide discretion. The test in the guidance does not narrow that discretion a great deal and simply provides that a warning will be appropriate in circumstances where the facts are undisputed and:

  1. there has been a significant departure from Good Medical Practice, or
  2. there is a significant cause for concern following an assessment of the doctor’s performance.

The guidance suggests that a warning is designed to act as a deterrent in order to guard against repetition. It is widely considered that the alleged offence must come close to the threshold for a finding of misconduct but the Council accepts that that test is unlikely to be made out at a hearing.

Considerations

Whilst a warning is not a legal restriction on a doctor’s registration, it will almost inevitably have adverse practical consequences. The Law Commission’s report into the Regulation of Healthcare and Social Care Professionals in England in 2014 does after all suggest that a warning may “in effect [be] a form of sanction”.

Community Research produced a report for the GMC in November 2015 entitled, ‘The effects of having restrictions on practice or warnings’. That research suggested that the majority of doctors who had accepted a warning suffered from severe and long-term impacts, with many reporting that their employment had been adversely affected or were even unable to return to work at all as a result. There is also evidence of the negative impact that it can have on a doctor’s personal life by virtue of the period for which the warning is published.

Community Research found that many employers would prefer not to employ a doctor with a warning, all other things being equal. That is further complicated by the fact that the current guidance provides that a warning will be published for five years and is readily available to the public and is specifically disclosed to an employer or potential employer upon request. This is particularly unwelcome where warnings are issued in respect of matters which occurred many years previously as the warning still remains in situ for a further five years.

It should also be borne in mind that a warning may negatively affect a registrant’s practising privileges in the private sector and prejudice other professional relationships.

Comment

There are several legal and tactical issues that will require careful consideration before a warning is accepted at the conclusion of the Council’s investigation. The doctor will be provided with an opportunity to respond to the allegation(s) whilst at the same time providing comments in response to the proposed warning and its wording. It should not be assumed that an invitation to accept a warning means that a warning is inevitable. Our experience has demonstrated that, in the right case, considered submissions to the Case Examiner may lead to the investigation being closed with no further action. Equally, submissions may achieve desired changes to the terms of the warning.

In each case consideration will need to be given to whether it is appropriate for the case to be heard at an oral hearing before the Investigation Committee. The Investigation Committee does not have powers to restrict a doctor’s registration. Its powers are limited to closing the case with no further action, imposing a warning or referring the matter to a hearing before the Medical Practitioner Tribunal.

For further information or advice please contact:

Stewart Duffy
Partner and Solicitor
T.
0207 227 7418
E. stewart.duffy@rlb-law.com


Disclaimer

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.

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