01 November 2023
Navigating GMC Investigations
When a practitioner receives a letter from the General Medical Council (GMC) informing them it has received a complaint, much of the initial stress can be dispelled by obtaining prompt, sensible advice. The first step for any practitioner should therefore be to contact their insurer or medical indemnity provider, who can explain what to expect and advise on the possible approaches to take at each stage.
The initial letter will usually simply enclose a copy of the complaint or referral documentation, and indicate that the GMC is opening a provisional or preliminary enquiry only, along with requesting the completion of a Work Details Form. This means the GMC is not yet sure whether a full investigation is required, so they need to obtain further information before deciding this. Depending on the nature of the complaint, the GMC may obtain copies of medical records and possibly a clinical review (if the allegations are clinical in nature), and they will also contact the practitioner’s Responsible Officer to ask about any other concerns. They may also arrange an assessment specific to a practitioner’s health, English language skills, or clinical performance, if the original complaint raises concerns in those particular areas.
While the healthcare practitioner can provide comment at this very early stage, it is important to seek advice on whether to do so as the risks and benefits need to be carefully considered. The tone and impact of an early response – if one is provided - can have a tangible impact on the future of any GMC investigation so it is not a step that should be taken lightly, particularly as the GMC will not have identified any specific allegations at this stage.
The GMC closes around 80% of the complaints it receives at initial triage, before they even reach the provisional enquiry point, in which case the practitioner may simply never be aware that the complaint was raised with the GMC in the first place. This is because the concerns raised do not meet the GMC’s thresholds for investigation, or simply are not matters that the GMC can investigate. Another significant portion of the remaining cases are closed once the provisional enquiry has been completed.
What will the GMC investigate?
The GMC will investigate “when [it] believes a doctor poses a serious risk to patients or has significantly or repeatedly failed to meet [its] standards.” The GMC does not generally investigate matters such as minor clinical errors, rudeness, disagreements over a diagnosis or medical report, waiting lists and access to appointments. It also cannot make a doctor apologise or perform a different medical treatment. Some examples of matters that could warrant an investigation include complaints involving serious or repeated mistakes in patient care, abuse of professional position (e.g., an improper sexual relationship with a patient), fraud or dishonesty, violence, indecency or sexual assault, serious criminal offences, discrimination, concerns about health that impact a professional’s practice or conduct, or serious concerns about English language skills.
The primary question the GMC poses if a case progresses past the initial triage and provisional enquiry stage is whether there is a “realistic prospect that allegations will be found proved that currently impair the practitioner’s fitness to practise to the extent that a sanction is required.” If this test might be met in the view of the GMC, they will formally write to the practitioner with a list of specific allegations for them to respond to and a copy of the underlying materials gathered and relied on. It is vital that practitioners continue to engage with their insurer or indemnity provider when preparing any response to these allegations, as they will be experienced in handling these matters and will be able to ensure that the response comprehensively deals with allegations and addresses the applicable tests that the GMC will be considering when reviewing the response and considering whether the matter ought to be referred onwards to a Medical Practitioners Tribunal Hearing.
Can the GMC stop a doctor from practising medicine?
If the GMC is concerned that a practitioner might pose an immediate risk if they were to continue practising medicine unrestricted while a concern is investigated, it can hold an Interim Orders Tribunal (IOT) hearing.
A practitioner will normally be informed of this at relatively short notice — usually around one to two weeks. The GMC will provide a bundle of documentation they have collated and a cover note explaining why it has referred the matter to the IOT.
In this instance, the practitioner’s insurer or indemnity provider should be contacted as a matter of urgency. It will have dealt with many of these cases and can guide the practitioner through the process.
It is important to remember that the IOT will not decide the facts of the underlying case or determine the allegations—they will only whether the practitioner’s registration should be restricted on an interim basis until the GMC’s investigation has concluded.
The IOT can impose ‘no order’, interim conditions, or interim suspension. Doctors will be restricted on an interim basis if the IOT finds “there may be impairment of the doctor’s fitness to practise which poses a real risk to members of the public or may adversely affect the public interest or the interests of the practitioner.” An initial interim order can only last a maximum of 18 months, and if an IOT wants to extend it beyond that date, it must apply to the High Court for approval.
Hot topics in GMC investigations
An area that is being keenly watched by those in the industry is the GMC’s approach to consent cases. The consent landscape has developed considerably in the last decade, and the GMC’s current Decision Making and Consent guidance came into force in November 2020. Given the natural time lapse between complaints being raised with the GMC and investigations being undertaken, cases arising from alleged breaches of that guidance have only now started appearing in medical practitioner tribunal (MPT) hearings. It will be interesting to see how far the MPT’s approach ultimately differs as a result of the new guidance.
What information will be in the public domain if a practitioner is under investigation?
Broadly speaking, the earlier investigative stages of the GMC process are conducted without any information being published on the Medical Register or online. However, healthcare practitioners are under certain obligations regarding who they should notify about the existence of an investigation. They should check with their insurer or indemnity provider if they have any questions on this matter.
If a practitioner is referred to an MPT hearing, a summary of the allegations will be published on the MPT website along with the hearing schedule details, and that remains in place until the hearing has concluded. The hearing judgment or determination document is then published on the website and is usually available for a year. The Medical Register will also be updated to reflect any sanctions but will not state that a doctor is under investigation prior to that stage.
We are here to help
While a GMC investigation will always be taxing and upsetting by their very nature, the underlying message is that the sooner a practitioner engages with their insurer or indemnity provider, the better. They will have the experience and understanding required to support a doctor through the various stages of the investigation, and will be able to arrange experienced support to navigate the process. Our team has extensive knowledge and expertise in this area so if you have any questions regarding GMC investigations or medical malpractice in general, please don’t hesitate to get in contact.
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The sole purpose of this article is to provide guidance on the issues covered. This article is not intended to give legal advice, and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and/or market practice in this area. We make no claims as to the completeness or accuracy of the information contained herein or in the links which were live at the date of publication. You should not act upon (or should refrain from acting upon) information in this publication without first seeking specific legal and/or specialist advice. Arthur J. Gallagher (UK) Limited trading and AOO Specialist Indemnity Scheme Limited, an introducer appointed representative of Arthur J. Gallagher (UK) Limited, accepts no liability for any inaccuracy, omission or mistake in this publication, nor will we be responsible for any loss which may be suffered as a result of any person relying on the information contained herein.