Get armed for your response! Nicola Wheater gives independent practitioners advice about responding to GMC complaints.
As all doctors are aware, receiving a letter from the GMC can be a daunting experience.
But getting one confirming that a complaint has been raised against you by a patient and the regulator is now investigating it can be a frightening experience.
While some doctors decide to bury their head in the sand and pretend nothing has changed, others are actively – and correctly – contacting their medical indemnifier to ascertain whether they can obtain assistance or are seeking independent legal advice at the first available opportunity.
You may ask why you should seek advice at such an early stage. The earlier a doctor does so, the earlier he or she can start preparing their case and begin receiving legal advice specific to them.
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 a 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.
While communication skills are a fundamental bedrock of being a doctor, each practitioner’s communication style is unique. Each patient’s perception of that doctor, and reaction to them and what they say, is ultimately subjective.
Thus, 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, while 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 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, they 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 the council’s threshold and accepted for investigation – where the threshold is met.
Good Medical Practice
Domain 3 of the GMC’s Good Medical Practice (GMP) covers ‘Communication, partnership and teamwork’ and specifically states in subsections 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.
Doctors must also ‘establish and maintain partnerships with patients’, and subsections 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 of the GMC (Fitness to Practise) Rules Order of Council 2004 stipulates that the regulator 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 its relies on – for example, the patient complaint and supporting documents – and this is known as a ‘Rule 7 Letter’.
As doctors know, 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, they 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?
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 inquiries 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 find it is often the presence of communication allegations – among 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 them is to refer the complaint to an FTP hearing for full ventilation of the evidence.
Therefore, where communication failings are alleged within the Rule 7 letter and are strongly refuted by the doctor, we have recommended our clients to provide an account to the case examiners setting out their version of events.
These have referenced and enclosed witness statements from any colleague who has overheard what was actually said.
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 them leaning in favor of referral to an FTP hearing, can include:
- References from colleagues regarding communication style;
- Testimonials from patients, where appropriate, and evidence of targeted communication and continuing professional development (CPD) undertaken.
Admission by doctor
There may be instances where a doctor admits their communication was sub-par.
Then we would recommend doctors submit evidence of remediation to the case examiners demonstrating 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.
By doing this, the doctor is able to put forward submissions to case examiners, via their legal representative, that argue although there is a likelihood of the facts being found proven at an FTP hearing, current impairment is unlikely to be found and so an FTP referral hearing should not be made.
FTP investigations are naturally stressful for a doctor, but instructing an independent legal representative, or relying on a medical indemnifier, can provide the required level of support and reassurance as well as the necessary legal advice.
However, not all doctors have access to support, so the GMC therefore set up the Doctor Support Service : phone 020 7383 6707 or email firstname.lastname@example.org.
It is completely independent of the GMC and offers complimentary emotional and confidential support to doctors currently under an FTP investigation.
It can also provide a supporter to accompany a doctor to their FTP hearing for up to two days to provide them with the necessary emotional support.
Good communication skills are a fundamental part of being a doctor and conducting regular communication CPD, among other soft skills, will always stand a doctor in good stead, prove invaluable at any stage of an FTP investigation and improve day-to-day communication with patients.
Nicola Wheater (right) is a solicitor at Ridouts Professional Services Limited, a specialist law firm acting for health and social care providers, offering legal, operational and strategic on matters that could negatively impact their businesses