GPs who are the subject of a GMC investigation can help themselves by showing how they have already reflected on what led to the complaint and demonstrating how they have addressed any deficiencies in their practice.
When the GMC replaced determinations of 'serious professional misconduct' with the more holistic approach of assessing a doctor's 'fitness to practise' (FTP) in 2005, evidence about a doctor's conduct since the incident or incidents concerned was not heard until after the panel determined impairment and was considering the appropriate sanctions, when it would be seen as mitigation.
Challenges to the GMC
This changed following a number of successful challenges to GMC decisions in the High Court. In the 2008 case of Cohen v GMC, Mr Justice Silber said: 'It must be highly relevant in determining if a doctor's fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated.'
In another 2008 case (Azzam v GMC), the court found that evidence about a doctor's present skills and any actions undertaken to remedy any deficit is relevant to a GMC panel's determination on impairment and can be considered.
These and other cases have highlighted the principle that the test of impairment is a current one looking forward and that while FTP panels should take account of past events, conduct and practice after the events in question are relevant.
The following fictional case, based on similar cases notified to the MDU, illustrates the value placed on remediation by the GMC:
A GP was informed that an elderly patient, to whom he had made a home visit a few days before to examine a painful leg following a fall, had been admitted to hospital with DVT and had later died. While updating the patient's notes he also discovered that the patient had a history of peptic ulceration, a fact not known to him when he prescribed non-steroidal analgesics for the patient's pain.
Change in practice procedures
A few months later, the GMC received notification of a complaint from the patient's family. As well as the diagnostic failure and prescribing error, the family also alleged the GP had been rude and dismissive of their concerns.
With the help of his defence organisation, the doctor wrote to the GMC demonstrating that he had reflected on his actions since the consultation and the action he had taken. He was also able to show how he had tried to address the point raised about his rudeness by undergoing training in communication skills.
The GMC case examiners considered all the evidence, including the doctor's comments, and were impressed by his obvious insight and remediation. The case was closed without referral to an FTP panel hearing.
Reflecting on practice
Of course, doctors already have an ethical obligation to reflect regularly on their practice and strive to maintain and improve their performance, particularly when there has been an adverse incident.
For doctors who then receive a GMC complaint, this can help to demonstrate that they are prepared to reflect, learn from experience and have insight - an important ingredient in any assessment of FTP. It may simply be reviewing events and perhaps adjusting practice or protocols to avoid recurrence of a particular complication.
It is clear that the GMC wants evidence of insight and remediation at the earliest possible stage of an investigation and its standard notification letter now includes a specific invitation to the doctor to explain steps taken to remedy deficiencies in areas identified in the complaint.
This may even provide an opportunity to show that any deficiencies have already been remedied as the GMC's case examiners will consider the doctor's response, along with the rest of the evidence, when deciding what to do next.
If there is no 'realistic prospect of establishing the doctor's FTP is impaired to a degree justifying action on registration' then allegations should not be referred for adjudication by an FTP panel.
It may even be appropriate to place before an FTP panel a 'remediation portfolio'. This can take a number of forms, including CPD course certificates, evidence of retraining or mentoring, literature studied and/or advice sought from the postgraduate deanery.
The MDU believes the GMC's emphasis on remediation is encouraging. GMC hearings may arise from a single incident and it could be some time between an incident and the case coming before a panel.
During that time the doctor may understandably feel as if their career is on hold. However, in prioritising remediation where appropriate they can at least take the initiative and in doing so can establish their FTP.
- Dr Wills is deputy head of advisory services at the MDU