Fitness to practise barristers look at whether evidence of insight and remediation really make a difference before a Medical Practitioner’s Tribunal (MPT)?
What is Insight and Remediation?
The reality is that sometimes things do go wrong in medical practice and mistakes are made. When this happens, reflection is important for any healthcare professional to gain insight into the circumstances that led to things going wrong and from this to demonstrate remediation.
Reflection is about serious thought or consideration of the circumstances that lead to a things going wrong. Insight is learning from this reflection to gain an accurate and deep understanding of steps necessary to, one, ensure mistakes are not repeated and, two, address the consequences.
Remediation refers to rectifying or correcting a certain behaviour that has generated fitness to practise concerns. MPTS guidance states:
“Remediation is where a doctor addresses concerns about their knowledge, skills, conduct or behaviour.”
How to evidence insight and remediation
Insight and remediation are often a long process to achieve and demonstrate effectively. It is important that both are genuine and demonstrable to ensure good outcomes for doctors facing fitness to practise investigations and allegations.
Kings View are rated excellent and have successfully represented many doctors. We can advise doctors on the best remediation strategy for their individual circumstances.
Factors that can be relevant to genuine insight include evidence that the doctor has considered the concern, understood what went wrong and accepted they should have acted differently by for example demonstrating that they fully understand the impact or potential impact of their performance or conduct.
MPTS guidance outlines the following factors as indicators that “a doctor is likely to have insight”, if they:
- accept they should have behaved differently (showing empathy and understanding);
- take timely steps to remediate and apologise at an early stage before the hearing;
- demonstrate the timely development of insight during the investigation and hearing.
The MPTS guidance goes on to state that “Remediation can take a number of forms, including coaching, mentoring, training…”
Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.
Medical Practitioner’s Tribunal – Mitigating and Aggravating Factors
When serious concerns have been raised about a doctor, the case may be referred to the MPTS for a hearing. A Medical Practitioner’s Tribunal can only impose a sanction where a doctor’s fitness to practise has been found impaired (i.e. where a doctor’s ability to practise safely and effectively has been weakened, damaged or negatively affected).
When a Medical Practitioner’s Tribunal considers what, if any, sanction should be imposed, it will “consider and balance” any mitigating factors presented by the doctor and any aggravating factors presented to it, normally by the GMC.
Does Insight & Remediation make before a MPT?
Insight and remediation plays a central role in the tribunal’s consideration of both mitigating and aggravating factors.
MPTS guidance states that “examples of mitigating factors” include “Evidence that the doctor understands the problem and has insight, and of their attempts to address or remediate it.”
Conversely, the same guidance attributes lack of insight and evidence of remediation as aggravating factors that are likely to lead to worse outcomes for doctors.
A tribunal has the power to impose a wide range of sanctions on a doctor, ranging from no action to erasure. In practice, evidence of insight and remediation can lead to the tribunal taking no action or imposing a less severe sanction. For example, the guidance states that, where there is evidence of insight, a tribunal could impose sanction or conditions on the doctor’s registration or approve an undertaking agreed between the GMC and the doctor. These are less severe than a suspension or erasure, for example.
Why legal advice and representation can make a difference
There is clear evidence that legal representation and advice leads to better outcomes for doctors and other health and care professionals. There are a number of issues for a doctor to consider when considering the value of legal advice. The simple fact is, MPTS hearings are far from simple and straight forward.
It is important that doctors understand what to expect if their GMC investigation leads to a MPTS tribunal hearing, and why the tribunal process is universally described as ‘daunting’. Doctors will need to prepare for a trial in all but name – the hearing will be complex, formal and adversarial; the panel will be headed by a legally qualified chair; the process will be broad-ranging and lengthy.
Preparing for a MPTS hearing is a lengthy process that involves a number of processes and steps. A very brief overview of these are outlined below:
- Case Management – When the GMC informs a doctor that their case has been referred to a MPTS hearing, the GMC will notify the MPTS that a hearing date is required. The MPTS will then use their “case management procedure” to allocate hearing dates and agree arrangements. A doctor will need to participate in a telephone conference where they will be given instructions to comply with. It is important to comply with these directions, as there can be consequences for failing to do so.
- Deciding to attend a MPTS hearing – A doctor will need to decide whether to attend their medical practitioners’ tribunal hearing or submit written submissions instead. If a doctor chooses not to attend, the hearing may proceed in their absence. A doctor will also need to make sure they inform the MPTS of their intentions within the prescribed timescales.
- Evidence – Doctors will need to prepare, submit and present their evidence. It is important to obtain and disclose all relevant evidence a doctor wishes the medical practitioners’ tribunal to consider, in line with the deadlines set. Evidence can include, for example, disclosing documents, obtaining expert and/or witness evidence, obtaining testimonial evidence and preparing to question General Medical Council (GMC) witnesses. Doctors will also need to be able to challenge and respond to GMC evidence.
- Procedures and rules – The consequences of failure to comply with the rules and/or case management directions might result in the medical practitioners’ tribunal to draw an adverse inference or exclude evidence and/or make a costs award against a doctor.
- Stages – An MPTS hearing involves a number of stages, each with opportunities to present evidence and arguments in support of the doctor’s case and challenge evidence from the GMC. Engagement and responding effectively during the various stages is crucial to the outcome of the hearing. Even if the MPTS makes a finding of impaired fitness to practise, arguments as to the appropriate sanction can still be made during the last stage of the process.
Kings View Barristers
With over 30 years combined experience, Kings View Chambers have established itself as one of the best when it comes to fitness to practise defence. We fully understand that fitness to practise defence is not merely about processes and procedures. 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 are proud to be rated ‘excellent’ by our clients. Our commitment to client care is genuine in both seeking the very best outcomes for our clients, but also ensuring we do what we can to support them through the process.
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