Fitness to practise barristers, Kings View Chambers, consider what doctors can do to avoid common types of misconduct allegations.

One of the most important steps to protect a doctor’s medical licence is making sure they avoid common types of misconduct allegations.

You should expect to be referred to the GMC at some point in your career

If you are a doctor working in the UK today, statistics show you should expect to be the subject of a GMC complaint at some point in your career. The GMC view such complaints as an ‘occupational hazard’, however most doctors who approach us for legal advice and support have little insight into this process and are ill-prepared for this extremely stressful eventuality.

Misconduct in Fitness to Practise

In order to understand misconduct, you must firstly understand what fitness to practise means.  The GMC defines fitness to practise as:

“doctors must be competent in what they do. They must establish and maintain effective relationships with patients, respect patients’ autonomy and act responsibly and appropriately if they or a colleague fall ill and their performance suffers.”

It follows that if a doctor’s fitness to practise is impaired, it means there are concerns about their ability to practise safely and effectively. The types of cases the GMC will consider are those that question whether a doctor’s fitness to practise is “impaired” and this includes, amongst other things, ‘misconduct’.

What is misconduct?

In general, misconduct is defined as “behaviour that falls short of what can reasonably be expected of a professional.”

There is no explicit legal definition of ‘misconduct’ in statute, in so far as it relates to fitness to practise.  It is however defined in common law (i.e. senior court judgements).

By way of a general overview, in Meadow v General Medical Council [2007], the Court of Appeal made clear that “misconduct” should not be viewed as anything less than “serious professional misconduct”.

In Roylance v GMC [1999], the Privy Council identified “the essential elements of the concept” of misconduct:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word “professional” which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word “serious”. It is not any professional misconduct which would qualify. The professional misconduct must be serious.”

For fitness to practise to be found impaired, the courts have made clear that the misconduct must “serious professional misconduct”.

things doctors can do to avoid a GMC referral

One of the most important steps to protect a doctor’s medical licence is making sure they avoid common types of misconduct allegations.

  1. Record keeping – Doctors must keep full, accurate and contemporaneous clinical records. GMC guidance states that doctors should:
  • Keep clear, accurate and legible records
  • Make records at the time the events happen, or as soon as possible afterwards
  • Record your concerns, including any minor concerns, and the details of any action you have taken, information you have shared and decisions you have made relating to those concerns
  1. Duty of Candour – All healthcare professionals have a duty of candour – a professional responsibility to be honest with patients when things go wrong.

A joint statement by medical regulatory bodies sets out the following practical approach to the duty of candour:

  • tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong;
  • apologise to the patient (or, where appropriate, the patient’s advocate, carer or family);
  • offer an appropriate remedy or support to put matters right (if possible); and
  • explain fully to the patient (or, where appropriate, the patient’s advocate, carer or family) the short and long term effects of what has happened.

Apologising does not necessarily mean that you are admitting legal liability for what has happened. This is set out in legislation Compensation Act 2006 (England and Wales) and the NHS Litigation Authority also advises that saying sorry is the right thing to do.

  1. Insurance – It is well understood that doctors need to ensure that you are indemnified in order to practise medicine in the UK – originally because it was a part of GMP, and more recently when it was given a stronger statutory footing. However, you really need to ensure that your indemnity is adequate and appropriate – which will depend on your precise circumstances.

The GMC does not really elaborate on what constitutes ‘adequate and appropriate’ – suggesting instead you speak to a medical defence organisation or other insurer.

  1. Use of Social Media – Social media can blur the boundaries between public and private life, and doctors must be careful to maintain professional boundaries when using social media. It is important to note that the standards expected of doctors do not change because they are communicating through social media as opposed to face-to-face or through other traditional media.

The GMC has produced guidance for doctors on their use of social media.  When using social media, doctors must be careful to ensure social and professional boundaries do not become unclear or blurred.  Doctors must ensure they follow the GMC’s Maintaining a professional boundary between you and your patient when using social media.

  1. Professional Boundaries – The nature of the patient/doctor relationship is such that doctors are in a position of trust with patients, often vulnerable either physically or mentally.

There is no defined definition of professional boundaries, but generally speaking, professional boundaries are the legal, ethical and regulatory limits to the healthcare professional/patient relationship that maintains trust, patient safety and protection and public confidence in the profession.

Although most often associated with improper emotional relationships or allegations of sexual impropriety, breaching professional boundaries can also encompass expressions of personal beliefs, financial conflicts of interest, and physical harm.

  1. Conflicts of Interest – Doctors should carefully consider actual or potential conflicts of interest and take steps to mitigate risks to patient care and reputational damage to public trust. Types of conflict of interest include, but not limited to, direct financial interest, indirect financial interest, non-financial or personal interests, conflicts of loyalty, and/or conflicts in professional duties and responsibilities.
  1. Prescribing – Linked to the conflict of interest point above, GMC guidance makes clear that doctors must not self-prescribe or prescribe to family and/or friends unless, 1. “no other person with the legal right to prescribe is available to assess and prescribe without a delay” and/or “emergency treatment is immediately necessary to avoid serious deterioration in health or serious harm.”
  1. Communication – we cannot overemphasise the importance of good communication with both patients and colleagues. The Good Medical Practise makes clear that doctors must “listen to patients, take account of their views, and respond honestly to their questions” and also “work collaboratively with colleagues, respecting their skills and contributions.”

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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