A single clinical incident in private practice can potentially result in multiple jeopardy for a surgeon. It can potentially give rise to a clinical negligence claim, a criminal investigation, an Inquest or even a GMC investigation. If a GMC investigation proceeds to a full Fitness to Practise (‘FTP’) hearing, then the worst case scenario is removal from the Medical Register and the effective end of the surgeon’s career.
Few GMC investigations get as far as a full FTP hearing, but even at the earliest stages, surgeons can find GMC investigations incredibly stressful.
A referral can arise out of anything that could impact on a surgeon’s fitness to practise. This can include matters relating to clinical competence, the surgeon’s own physical or mental health, or the surgeon’s behaviour towards others. A referral to the GMC can come from a range of individuals and organisations.
Sometimes a surgeon is informed that a referral is being made, but often their first knowledge of the investigation is when the GMC sends its Rule 4 letter and a Work Details form. The GMC allows an opportunity to provide comments at the Rule 4 stage, and surgeons are often very keen to do so. But a careful judgment has to be made about whether to comment at all at this stage – it is not mandatory and it is not always in the surgeon’s interests. Medico-legal (and sometimes full legal) advice is often necessary to assess what is best in that individual case.
Regardless of whether comments are made to the GMC at the Rule 4 stage, a surgeon should give very careful consideration to whether there is any ‘remediation’ that they should do to protect and mitigate their position (even if they do not consider that they did anything wrong). The surgeon may well benefit from medico-legal (and sometimes full legal) advice about remediation.
At any time in the process, a surgeon can be referred for a hearing before the Interim Orders Tribunal (‘IOT’) to decide if a surgeon’s practice should be restricted while an investigation takes place. Given the potentially very significant impact on a surgeon’s practice, surgeons should usually have full legal representation at an IOT.
If the Registrar has decided that the concerns need to be investigated by Case Examiners, the GMC will write to the surgeon with specific allegations, providing them with full documentation supporting those allegations. This is known as the Rule 7 stage. The surgeon has 28 days to respond.
After that the outcome can range from no further action to warnings to undertakings or referring the matter for a full FTP Hearing before the MPTS. If an FTP hearing takes place then findings of fact will be made and findings about whether there is any impairment in the surgeon’s fitness to practice. The consequences of a finding of impairment can include removal from the register, so full legal representation is essential for the surgeon.
With all this in mind, surgeons need to check that their indemnity arrangements include cover for the cost of legal advice and representation if the GMC investigates them, and particularly from the Rule 7 stage onward. Surgeons also need to understand any notification requirements of their indemnity arrangements and notify promptly once they learn of a GMC referral, or of circumstances that could lead to a GMC referral (such as a threat of referral or some hospital investigations). Notification is even more vital if the issue or incident could also lead to the surgeon being an Interested Person at an Inquest, or to a clinical negligence claim or even a police investigation. Notifying at the right time is in your interests because it avoids potential problems with cover, but also gets you access to the right medico-legal (and full legal) advice and assistance when you need it.
The details of GMC procedure are unfamiliar to most surgeons, so Incision has produced a detailed guide to give Incision members an overview of the GMC process, to demystify it and provide some key guidance particularly on remediation. Incision members have the benefit of insurance policies that pay for legal representation in GMC investigations, Inquests and police investigations, and of course cover for compensation claims. Incision members also have access to a specialist medico-legal helpline team staffed by dual qualified doctors and lawyers who are on hand to assist and support members if they are unlucky enough to be involved in a GMC invesitgation.