As all Doctors will be aware, receiving a letter from the General Medical Council (“GMC”) can be a daunting experience. However, receiving a letter from the GMC confirming that a complaint has been raised against you by a patient, and the GMC are now investigating that complaint, can be a frightening experience.
Whilst some Doctors decide to bury their head in the sand and pretend that nothing has changed, others are actively (and correctly) contacting their medical indemnifier and ascertaining if they can obtain assistance or seeking independent legal advice at the first available opportunity. ‘Why seek advice at such an early stage’, you may ask? The answer is simple. The earlier a Doctor seeks advice, the earlier a Doctor can start preparing their case and start receiving legal advice specific to them.
The fact remains that Doctors work hard to become qualified and all patient complaints should be treated seriously, especially those subject to GMC consideration where there can be potential adverse repercussions for a Doctor’s practice.
Failure to communicate
Even though patient complaints subject to GMC investigation may differ in complexity and severity, a common theme running through them is often an alleged failure to effectively communicate with patients. This not only impacts Doctors but all allied healthcare professionals working at the coalface and providing care to vulnerable patients.
Whilst communication skills are a fundamental bedrock of being a Doctor, a Doctor’s communication style is unique and each patient’s perception of that Doctor, and reaction to them and what they say, is ultimately subjective. Therefore, a direct, no-nonsense speaking Doctor who responds to a patient’s concerns may be regarded as showing a lack of compassion by the patient whilst a Doctor who continues to listen to a patient’s worries but repeats earlier advice given, may be perceived as dismissive of the patient’s concerns.
Other common examples of communication failures we have seen at Ridouts Solicitors (“Ridouts”) include a Doctor allegedly being brusque with patients and a failure to obtain full consent before proceeding to examine a patient. With the assistance of legal advice from Ridouts, the Doctor(s) were able to effectively respond to the Rule 7 Letter (see further detail below) and the Case Examiners determined that no further action was required.
As a direct result of all or any of the above, alongside any other potential failings alleged, the patient then submits a written complaint to the GMC which is subsequently reviewed against their threshold and accepted for investigation (where the threshold is met).
Good Medical Practice
As Doctors will already be aware, domain 3 of ‘Good Medical Practice’ (“GMP”) covers ‘Communication, partnership and teamwork’ and specifically states in sub-sections 31-34 that Doctors must:
- Listen to patients, take account of their views, and respond honestly to their questions.
- Give patients the information they want or need to know in a way they can understand.
- Be considerate to those close to the patient and be sensitive and responsive in giving them information and support.
- Be readily accessible, when on duty, to patients and colleagues seeking information, advice or support.
In addition, Doctors must also ‘establish and maintain partnerships with patients’ and sub-sections 46-49 of GMP stipulates that this includes:
- Being polite and considerate.
- Treating patients as individuals and respecting their dignity and privacy.
- Treating patients fairly and with respect whatever their life choices and beliefs.
- Working in partnership with patients, sharing with them the information they will need to make decisions about their care including their diagnosis and prognosis, the roles and responsibilities of the care team, how information is shared within that team, and other relevant information should a patient be involved in teaching or research.
Rule 7
Rule 7 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 stipulates that the GMC will write to a Doctor notifying them of allegations raising concern regarding their Fitness to Practise (“FTP”) and requesting written representations within 28 days from the date of the letter. The GMC will also provide the Doctor with a copy of the documents they rely on e.g. the patient complaint and supporting documents, and this is known as a ‘Rule 7 Letter’.
As Doctors will already be aware, the Case Examiners are the gatekeepers of FTP complaints and their task is to determine how a complaint should be disposed of. In doing so, the Case Examiners apply the following test (known as the ‘realistic prospect’ test) to complaints: 1) is there a realistic prospect of the facts being found proven at an FTP hearing and 2) is there a realistic prospect of impairment being found at an FTP hearing justifying action being taken by an FTP Panel.
Where the Case Examiners response is affirmative to both, the case will be referred to an FTP hearing. Where the response is in the negative, the Case Examiners will choose an alternative option. This can include taking no further action, adjournment of the matter to make further enquiries, or the imposition of a Warning or Undertakings as and where relevant.
Rule 7 Response
At Ridouts, we have frequently seen communication allegations raised against Healthcare professionals, including Doctors and it is often the presence of communication allegations, amongst other clinical allegations that result in a complaint being referred to an FTP hearing. This is because Case Examiners, after the Rule 7 Letter has been issued and responded to by the Doctor, are unable to determine disputes of fact without supporting corroborative documentation. Therefore, the only recourse available to the Case Examiners is to refer the complaint to an FTP Hearing for full ventilation of the evidence.
Therefore, and where communication failings are alleged within the Rule 7 Letter and are strongly refuted by the Doctor, we have recommended to our clients that they provide an account to the Case Examiners setting out their version of events and have referenced and enclosed witness statements from colleague(s) who overheard what was actually said. In doing so, this has provided the corroborative evidence required for the Case Examiners to close the case with no further action. Further documentation that can assist the Case Examiners at this stage, and prevent the Case Examiners leaning in favor of referral to an FTP hearing, can include references from colleagues regarding communicate style, testimonials from patients (where appropriate) and evidence of targeted communication Continuing Professional Development (“CPD”) undertaken.
Naturally, there may be instances where a Doctor admits that their communication was sub-par on that occasion and we would recommend to our clients that they submit evidence of remediation to the Case Examiners demonstrating that this is not their usual practice, they have the necessary insight into their past failing/error, and they have already remediated their communication technique and enclosed verifiable CPD to this effect. In doing so, the Doctor is able to put forward submissions, via their legal representative, to the Case Examiners that although there is a likelihood of the facts being found proven at an FTP hearing, current impairment is unlikely to be found and therefore a referral to an FTP hearing should not be made by the Case Examiners.
Support
Naturally, any FTP investigation can be stressful for a Doctor and instructing an independent legal representative or relying on a medical indemnifier can provide the required level of support and reassurance during this challenging period as well as the necessary legal advice.
However, not all Doctors have access to support and the GMC therefore set up the Doctor Support Service. The Doctor Support Service is completely independent of the GMC and offers complimentary emotional and confidential support to Doctors currently under an FTP investigation. The Doctor Support Service can also provide a supporter to accompany a Doctor to their FTP hearing for up to two days thus providing them with the necessary emotional support. To contact the Doctor Support Service, the relevant contact details are as follows: 020 7383 6707 or doctorsupportservice@bma.org.uk .
Conclusion
Whilst being the subject of an FTP investigation can be a frightening experience, this article has hopefully (and helpfully) explained how alleged communication failings can be addressed and defended at the Rule 7 stage. Naturally, and as stated above, good communication skills are a fundamental part of being a Doctor and conducting regular communication CPD (amongst other soft skills) will always stand a Doctor in good stead, prove invaluable at any stage of an FTP investigation, as well as improving a Doctors day to day communication with patients.
If you are a Doctor facing failure to communicate allegations or in receipt of a Rule 7 Letter and require legal assistance, please contact Ridouts Solicitors on 0207 317 0340 or info@ridout-law.com.
Ridouts Professional Services Limited is a specialist law firm that acts for health and social care providers, offering legal, operational, and strategic on matters that could negatively impact their businesses. For more information, visit www.ridout-law.com.
