You've been warned

AS PART of the major overhaul of its fitness to practise procedures in 2004 the General Medical Council introduced a new weapon to its armoury in the form of a warning to be placed on a doctor’s registration record for a period of five years. Whatever the justifications for the introduction of this new power, and doubtless they were many and varied, surely one was pragmatism, given that the GMC is now able to impose a sanction upon a doctor’s registration, in effect a disciplinary finding, without the necessity of going through a lengthy and costly adjudication process. All well and good for the regulatory body but what are the consequences and potential pitfalls for the practitioner being faced with a decision of this sort, and what have been the lessons learned so far from seeing how these new powers have been utilised?

The power to impose a warning appears at Rule 11 of the General Medical Council (Fitness to Practise) Rules 2004, although the explanation as to how the scheme works and the criteria for when a warning is deemed to be appropriate can only be found in the accompanying guidance (the most recent issued in June 2008). A doctor having been the recipient of a complaint which the GMC considers justifies investigation under its fitness to practise procedures may receive a letter stating that the case examiners have taken a preliminary view that it is the sort of case which might be dealt with by the imposition of a warning. The doctor is then invited to submit representations upon the matter before a final decision is made as to whether a warning is in fact to be imposed.

However, the process is not as straightforward as it may seem. At the same time as receiving such a letter the doctor is served with a statement of facts said to underpin the complaint. He or she will also be sent a précis of those facts and the proposed warning in draft form and these, if accepted, will be a matter of public record and will also appear on the GMC’s website as a case concluded with a warning. The doctor is also informed that a warning can only be issued if the facts as set out in the statement are not challenged and he or she does not wish to take advantage of the right to have the whole thing looked at by an Investigation Committee at a public hearing further down the line.

Little room to manoeuvre

Those of us involved in advising doctors and their defence organisations in respect of these matters have come to the realisation that there is little room for manoeuvre in the face of a proposal from the GMC that a complaint be dealt with by a warning: either accept it with all that that may mean in terms of a doctor’s registration record and the potential damage to reputation and future employment prospects, or be prepared to fight all the way to an Investigation Committee and, in theory at least, in front of a full Fitness to Practise Panel. Thus, the stakes can be extremely high and the doctor involved will want to give the matter very considerable thought, and doubtless take careful advice, before responding to the GMC’s initial letter proposing a warning.

Warnings are deemed to be appropriate in those cases where a full hearing in front of a Fitness to Practise Panel is not considered to be justified. The decision maker must be satisfied that there is no realistic prospect of establishing that the doctor’s fitness to practise is impaired to a degree requiring action on his or her registration. A warning is likely to be considered appropriate where the offence or complaint is at the lower end of the spectrum of misconduct or concerns about performance; it is intended to mark the fact that the behaviour complained of is unacceptable and must not happen again. The test is whether the practitioner’s behaviour or performance has fallen below standards to a degree warranting a formal response by the GMC, and in circumstances where there has been either a significant departure from the terms of Good Medical Practice or there is a significant cause for concern following a (formal) assessment of the doctor’s performance. Bearing in mind that there is no definition of “significant” in the Medical Act or in the Fitness to Practise Rules – what sort of factors are taken into account in considering whether a warning is appropriate?

If the decision makers are satisfied that the doctor’s fitness to practise is not impaired then they will look to see whether there has been a clear and specific breach of Good Medical Practice or other supplementary guidance. Further, a warning will be appropriate when the concerns are sufficiently serious that, if there were a repetition, they would likely result in a finding of impaired fitness to practise. Consideration has to be given to the degree to which the conduct, behaviour or performance could affect patient care, public confidence in the profession or the reputation of the profession. In theory at least, warnings can be implemented in response to any type of allegation with the exception of concerns exclusively in connection with a doctor’s health.

Whilst it might be assumed that cases involving a conviction or caution would always proceed to the next stage of the Fitness to Practise procedures this is not necessarily so in criminal offences at the ‘bottom end of the scale’. In such cases a warning may be deemed more appropriate. Each will be decided on its merits but the GMC’s own guidance refers to potential warnings for one-off drink driving offences where there is no evidence of underlying health concerns, common assault offences outside the context of the doctor’s professional practice, disorderly behaviour while drunk and criminal damage. The same principles are applied in relation to allegations of dishonesty which have not previously been the subject of criminal proceedings.

Contested warnings

Figures obtained from the GMC at the beginning of Summer 2008 reveal that some 59 cases have been heard by the Investigation Committee so as to determine whether the imposition of a warning is deemed to be an appropriate sanction. These cases have gone to the Investigation Committee stage either because the decision makers of the Council have not been in agreement as to the right outcome or because the individual doctor disagrees with the facts alleged or argues that a warning is a disproportionate measure in all the circumstances of the case. It seems that in terms of outcome from those hearings there is an almost 50/50 split between a decision by the Committee that the warning as proposed should in fact be confirmed and a decision that the warning was not justified and that no further action should be taken against the practitioner.

Closer analysis of the statistics indicate, and this is unsurprising, that a very high proportion of those cases which end up being contested at an Investigation Committee hearing relate to probity issues and concern with clinical care. It looks as if the figures both in relation to outcome and types of matters being considered by the Committee have remained more or less static in the years since the power to impose a warning was introduced.

Given what we now know about how the GMC approaches cases where a warning is felt appropriate, what factors does a doctor need to bear in mind before deciding whether to accept the inevitability of the warning decision or taking their chances at an Investigation Committee hearing?

Firstly, it is important to be aware that there is a risk, albeit in the majority of cases a pretty small one, that if matters are contested the case could yet escalate and end up at a full Fitness to Practise Panel hearing at some time far in the future. The GMC’s guidance makes it clear that this would only ever happen if there was new evidence, whether in documentary form or orally, given in front of the Committee that was not available to the original decision makers. This may be an important consideration where there is a clear dispute arising out of the facts of the case and would be particularly significant if the case raises issues as to honesty or integrity.

Matters before the Investigation Committee are in public, evidence is given on oath, and transcripts prepared as in full hearing cases. It has to be accepted, therefore, that what is said in one arena is bound potentially to have a very significant effect upon later proceedings. It should be noted at this point that for an allegation to go forward in any form, however serious, it must be capable of being proved to the necessary standard, and if it is not then the decision makers should not have considered the imposition of a warning at all irrespective of whether other criteria might be made out. Thus, if a doctor is facing a warning letter but feels that the evidence in support of the statement of facts is very weak then serious consideration should be given to putting in written representations and suggesting that the case against him or her simply cannot be proved. Sadly, in those other cases where the evidence may be more evenly balanced there would be a significant degree of risk in going down this path as the standard of proof at the GMC is somewhat lower than that which has been required in the past.

Personal mitigation

Secondly, it should be borne in mind that, in theory at least, even in those cases where the doctor accepts the statement of facts alleged against him or her in its entirety, it is possible to seek to argue by means of written representations that a warning is too much of a Draconian sanction. The GMC’s guidance recognises that the decision makers should apply the principle of proportionality, weighing the interests of the public with those of the practitioner. There is potential scope at this stage to seek to rely upon personal mitigation on behalf of the practitioner and relevant factors might include a previous good history, expressions of regret or apologies, any rehabilitative or corrective steps that had been taken together with relevant and appropriate references and testimonials. Again it is possible to seek to deploy such arguments and material at the initial decision-making stage but the reality is that they are only likely to be effective in front of the Investigation Committee. It must be remembered that the onus is on the practitioner to commit to a position at the outset of the procedure as to whether they ultimately want to contest the warning decision in front of the Committee at a public hearing.

The experience so far of the GMC’s warnings regime is that doctors and their advisers need to feel that they are on solid ground if there is to be any prospect of persuading the decision makers to step back from a decision which has effectively already been taken if not quite set in stone. Further, all should be wary indeed of challenging before the Investigation Committee allegations that question the doctors’ honesty or integrity as there must be a very real risk that a warning may be the least of their worries. It would seem that once again that doctors cannot win!

Ian Sadler is a solicitor and partner in the healthcare department of RadcliffesLeBrasseur