Experts in GMC Cases

Guidance for Doctors Where the GMC Instructs an Expert in Fitness to Practise Cases that are not related to Health Concerns

The GMC will instruct clinical expert witnesses to advise on factual allegations made by complainants about a doctor’s clinical or other conduct. In many cases no findings of fault will be identified against a doctor and the GMC will close the case on paper. There are a few cases each year however where an expert instructed by the GMC will find a doctor to have been at fault in some way and the fitness to practise procedures will then be followed.

The GMC will instruct experts in health cases as well but that topic is discussed elsewhere on this website. This article focuses on allegations of clinical failures, by act or omission, where experts are instructed by the GMC to opine.

It is a requirement that an expert shall have sufficient expertise in a subject matter to be in a position to provide an opinion. An expert will need to prove that they have the right experience and knowledge to claim to be an expert, and this is usually done by reference to their CV, the academic papers or studies they have been involved in, and their specialisation.

As a general rule, doctors should be careful before holding themselves out as experts. On occasions, the GMC will discipline doctors (through fitness to practise misconduct procedures) who claim to have expertise when they do not in fact have knowledge and skill to be one.  Therefore, an individual who acts as an expert must ensure that they have the right experience and status to be an expert, when acting as an expert witness in any forum, including GMC cases.

A doctor who is facing allegations can also choose to instruct their own expert. This can be very useful on occasions, bringing another view to the table. On occasion, the GMC will discontinue the pursuit of allegations where a defence expert has opined that a doctor has not failed to adhere to a standard, for example by conducting themselves within a reasonable approach within medicine (i.e. acted within the scope of a reasonable body of opinion in medicine).

By way of example, if the GMC’s expert (say a Professor and well-recognised specialist in a field of medicine) opines that a doctor who prescribes a drug is not acting within a reasonable body of knowledge, but an equally comes to a different opinion, the GMC might well discontinue the pursuit of the allegation.

The problem for the defence (for the doctor who is complained about) is that the cost of instructing an expert can be prohibitive. Further, it is not unknown for the defence to instruct an expert who (after undertaking the relevant reading and a literature search) forms an opinion that is (regrettably) in agreement with the GMC expert. The defence must then choose either to accept that defence expert’s opinion or seek an opinion from another defence expert, who may be more favourable to the doctor. It may also be necessary in some instances to instruct more than one expert, because a particular complaint straddles more than one area of specialist medical practice.

Where two experts (one for the GMC and one for the defence) are to give evidence at a Medical Practitioners Tribunal (MPT) hearing, they will be encouraged to have a meeting to narrow the issues, where they can, and identify areas of agreement and disagreement. This step in turn makes the tribunal’s task easier when looking at the issues, as well as making it clear to the parties where the focus of the evidence and cross-examination needs to be. Where two opposing side’s experts meet, the civil courts (including the MPT/GMC) now encourage that a joint agenda for the meeting to be put together by the parties’ lawyers (pursuant to CPR Practice Direction 35 para 9.2), to avoid misunderstandings, in so far as is possible. The experts should seek to do the following when having a discussion:-

‘DISCUSSION BETWEEN EXPERTS

9.1 Unless directed by the court discussions between experts are not mandatory. Parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an experts’ discussion and if so when.

9.2 The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:
(i) the extent of the agreement between them;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed.

9.3 Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone.

9.4 Unless ordered by the court, or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts discussions.

9.5 If the legal representatives do attend –
(i) they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law; and
(ii) the experts may if they so wish hold part of their discussions in the absence of the legal representatives.

9.6 A statement must be prepared by the experts dealing with paragraphs 9.2(i) – (iv) above. Individual copies of the statements must be signed by the experts at the conclusion of the discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of the statements must be provided to the parties no later than 14 days after signing.

9.7 Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.

9.8 If an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.’

(Taken from https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35/pd_part35#9.1) as on 21/8/18)

(For guidance on writing a joint agenda, see, by way of example, the case of: David John Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) (23 February 2018). To quote the judge in that case, when drafting an agenda: “Sometimes less is more as far as the agenda is concerned“, per Mrs Justice Yip at para (35).

At an MPT hearing, the experts for each party will give evidence and be questioned by the lawyer representing the GMC and the lawyer representing the doctor. Challenges to the GMC expert must be put to the GMC’s expert, so that they have an opportunity to comment. In some instances, an expert might agree with a defence proposal, when a particular piece of evidence or alternative academic paper is put to them.

Falling Below Standard, and Falling Seriously Below Standard

Where factual allegations are proved (usually by way of evidence from documents and other witnesses) the experts will be asked to comment on the various scenarios that might be accepted by the tribunal, to opine on whether the doctor has acted below the standard expected of a doctor working at the grade of the defendant doctor. The GMC asks two questions of experts. Did the defendant doctor’s conduct fall: 1) below, or: 2) seriously below – the standard expected of them?

At an early stage of GMC proceedings, well before any hearing is contemplated, if an expert instructed by the GMC forms the view that the conduct of the doctor fell below but not seriously below the standard expected, the GMC may well close the case either with guidance or a warning, or no further action.

In some instances, an expert will make a number of findings of sub-optimal practise. The GMC might look at the number of such findings and hold that there are so many of them that is overall evidences practice that is of such concern that a referral to a fitness to practise hearing is necessary to protect the public from harm.

Misconduct or Deficient Professional Performance?

The GMC can look at an expert’s opinion (and the underlying evidence that they have relied upon) and form a view that there is deficient professional performance or professional misconduct which is serious on a doctor’s part. At which point, the case will be sent to the case examiners for a decision to be made about disposal of the case. This is called the Rule 7 stage of the GMC investigation. A doctor should make detailed representations in most case. We can assist with that.

Properly influencing the GMC’s Expert

A doctor is entitled to bring to the GMC’s attention evidence that the GMC’s expert(s) should see. This is often an overlooked step and can lead to an expert properly considering alternative points of view at an early juncture. We would therefore recommend in some classes of cases that this step be taken.

Closure of the Case is More Likely with Good Remediation and Developed Insight

Closure of a case is also more likely to occur where the doctor in question has taken appropriate steps to demonstrate quality remediation and good insight. Doctors should therefore do their best to remediate the alleged failings, insofar as they are able to. Showing insight, as well is also likely to assist. To identify the best forms of remediation and to ensure that insight is as fully developed as possible, we would recommend that doctors take early legal advice from a specialist in GMC law.

Duties of the Experts

Both the GMC’s and the defence’s experts’ primary duty is to the tribunal, rather than their instructing client, in the interests of justice. An expert must therefore give their opinion unencumbered by the views of the party instructing them. So when we describe the experts as GMC and defence experts in this paper, we do so we the caveat that they should not be partisan.

Summary

In summary, a doctor facing criticism should not sit back and wait for the GMC to conclude the investigation into their case. They should instead proactively protect their position by taking appropriate steps to understand the history of concerns in sufficient detail to understand where (if at all) they have gone wrong. Where they have gone wrong, they should ensure that they can demonstrate that they acknowledge fault and that the risk of reception is low. Even where a doctor does not accept the criticisms made against them, good remediation and evidence of insight can still lead to cases being closed on paper. Only a few cases are referred to fitness to practise each year, but those doctors who do not take the above course of action are more likely to find themselves facing a fitness to practise hearing.

See also our article: Instructing an Expert in GMC Cases

And our article on: the expertise that a doctor must have to be an expert.

Doctors Defence Service can be contacted on 0800 10 88 739, for a without obligation discussion about how we can assist doctors who are facing allegations where an expert for the GMC has been instructed.