GMC’s duty of care. Is legal representation the answer?

In a previous post, we reported on the truly tragic case of a consultant anaesthetist with an exemplary professional record who died by suicide after being informed of a General Medical Council (GMC) investigation into his fitness to practise. The investigation was initiated following a referral from the police regarding allegations made by a 15-year-old patient, who alleged that the doctor had committed a sexual assault whilst she was under his care.  However, the evidence was inconsistent with the doctor being the perpetrator, and no charges were brought against him.

In a case brought by the deceased doctor’s family, the High Court ruled that the GMC did not have a duty of care saying, in summary:

1. It would conflict with the statutory responsibilities of the GMC to impose a duty of care regarding its communications with doctors. The regulatory framework restricts the GMC’s liability for negligence in such circumstances.
2. The GMC’s specific actions (like notifying the doctor) or omissions (things it could have done beforehand) were not found to create a duty of care. The court also noted that the GMC did not assume responsibility for the doctor’s well-being.
3. Such a duty could hinder its ability to effectively conduct investigations and protect the public.
4. Regulators, like the GMC, are not liable in negligence for how they carry out their statutory functions.

Whilst this case was determined on the individual merits of the doctor’s case, it clearly has far-reaching implications for doctors (and other regulated healthcare professionals). 

We have in the past written extensively on the role of GMC in relation to doctors under investigation.  As far back as 2016, the then General Medical Council (GMC) Chief Executive, Niall Dickson, wrote in the Daily Mail, that, speaking about the GMC:

‘We are not here to protect doctors – their interests are protected by others. Our job is to protect the public.‘

The language may have softened somewhat in the last few years, with an increasing emphasis now placed on the role of the GMC in helping to support doctors.  But if you find yourself under investigation, you may quickly find that the GMC is far less concerned about protecting doctors than you first thought – its two main concerns are patient safety and maintaining public confidence in the profession as a whole.

The position on the GMC’s duty of care is now unquestionably clear.

Is legal representation the answer?

It is widely accepted and proven that legal representation makes a real difference to the outcome of investigations and results in lesser sanctions for doctors.

What is also unquestionably clear is that GMC investigations and MPTS hearings are complex, daunting, prolonged and legalistic leaving doctors stressed and anxious.  Where legal advice and representation can have the biggest impact on this, is helping doctors understand the process, what to expect and how to engage with the GMC during an investigation and hearing.

Research has shown that registrant’s engagement and legal representation can impact on decisions about seriousness, and that the lack of legal representation has been identified as being associated with more severe sanctions outcomes in fitness to practise cases, stating:

“Legal representation was seen as important by participants because legal advice could support and guide registrants through the FtP process, which is complex and legalistic. Legal advice was seen as important in aiding registrants to understand regulators’ expectations, especially in terms of the need for registrants to demonstrate insight and perhaps to show evidence of remediation activities. Lack of legal representation was, therefore, seen to potentially have an impact in terms of the seriousness of the outcome for registrants who are perhaps unaware of how to present their case to best effect.”

 A compassionate approach to legal representation

The right legal advice and representation is not just about the legalities and technicalities of a case.  Our barristers fully understand the stress and anxiety that doctors experience during prolonged GMC investigations.

We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.

We never lose sight of the human aspects of FtP investigations and hearings.  We will always give an open and honest assessment of cases, but we will marry that with an approach that also supports health and care professionals through the duration of a case.

“I was not optimistic about the case, I felt that it is a lost case that we couldn’t do much about and especially just before the start of the trial I lost my confidence and was very nervous. Mr McCaffrey was there to prove me wrong. He turned everything around in a victorious , panegyric manner. I was stunned.” – CL

Catherine is professional, empathic and very knowledgeable. She provided all the necessary assistance throughout the long thorough investigation. – AR

A colleague recommended me to Catherine. She was very experienced , professional, empathetic , non-judgemental and listened to me. – Mel

I found myself consumed with dark thoughts, isolated and afraid. Stephen worked with me and slowly but surely formulated a plan not to just to fight my case and win, but to build me back up bit by bit so as to prepare me to face external scrutiny and present with confidence to panels where this was necessary. – FJ

What you can Expect when Instructing Kings View

All clients are entitled to an initial, no obligation and free telephone consultation about their case.  During this consultation, we will outline the stages and next steps, including indicative timeframes and fixed price quotations for preparation and representation and confirmed in writing at each and every stage.

We understand that timescales are entirely dependent on the stage you are at in proceedings, what work needs to be done and dictated by internal investigations or hearing dates.  We always meet those timescales however should more time be needed, then we will apply for such on your behalf and with your permission.

Contact us today for a no obligation and free telephone consultation about your case in the knowledge that you are speaking to one of the best in the business.