GMC / MPT Fitness To Practise (FTP) Tribunal Hearing Representation

GMC FTP Medical Practitioners Tribunal (MPT) Process Explained

Doctors Defence Service (DDS) defends doctors before the General Medical Council (GMC) / Medical Practitioners Tribunal Service (MPTS) in all fitness to practise hearings, interim orders hearings, restoration hearings, and registration law hearings.

A doctor who is referred to a General Medical Council fitness to practise hearing has a number of procedural stages to prepare for. A GMC / MPT Fitness to Practise (FTP) hearing has four principle matters to determine: 1) Facts; 2) Misconduct / Deficient Performance / Health; 3) Impairment; 4) Sanction.

While the MPT tribunal proceedings are inquisitorial, doctors who are facing allegations can potentially influence the outcome of their FTP case by presenting quality evidence, strong legal argument, and oral and written submissions at each stage of the hearing. Those doctors who prepare well, in advance of their FTP hearing, usually fare better than those who leave preparation to the last minute, in our experience over many years. We would therefore encourage doctors to seek legal advice at an early stage, so that full preparation can be undertaken, even if they choose to represent themselves at a later stage or use our services for just parts of their case.

Where a doctor denies the factual allegations, as set out in the formal GMC Allegations, the GMC case presenter will call witnesses and present documentary evidence so as to prove the case against the doctor. The doctor may give evidence and call witnesses in their defence. Either or both sides may call expert witness evidence, in prescribed circumstances. The doctor and the GMC also has a right to question witnesses called by the other side. The FTP tribunal determines where the truth lies on the balance of probabilities. That is the civil standard of proof. The criminal standard of proof (‘beyond reasonable doubt’), which used to be applied in GMC cases, is no longer used.

The standard of proof or  ‘threshold’ for proving a case is therefore now lower than it once was, making it easier for the GMC to prove its case against a doctor. The GMC needs only to prove the case on the balance of probabilities (determining “which explanation is more probable”) to a threshold of 51% likelihood or more.

The GMC may also rely on hearsay and admit evidence that is not admissible in other legal proceedings, in certain circumstances, rather than call a witness but that will depend on the overall impact on the fairness of the proceedings to the doctor, who is entitled to a fair trial at common law and under Article 6 of there Convention on Human Rights.

The other stages (misconduct, impairment, sanction stages) of the GMC FTP hearing are a matter of judgement for the tribunal that is considering the case, rather than on the balance of probabilities.  Evidence can be called at the misconduct / deficient performance / health; impairment; and sanction stages of the hearing. Submissions and legal argument can also be made.

The tribunal might find at any stage that the case brought by the GMC is not made out (i.e. not substantiated). It should be noted that not all factual allegations, even if proved, constitute misconduct or deficient performance. If the case against the doctor is not proved at any stage of the proceedings the case will be closed.

The code of conduct for doctors Good Medical Practice is used by the GMC and MPT tribunals to assess whether a doctor has fallen below the standards expected of a doctor. In relation to medicines, the GMC’s guidance Good Practice in Prescribing and Managing Medicines and Devices (2013) will be used by the tribunal to assess whether a doctor has fallen below the standards set out therein. There is also other guidance and ethical guidance that will be considered, as published by the GMC, royal colleges (setting out ‘industry’ standards), and employers.

At the Impairment Stage the tribunal asks itself: “Is the doctor’s fitness to practise currently impaired?”. Where a tribunal determines that the doctor’s fitness the practise is not impaired, they may still impose a GMC Warning, which sits on a doctors registration for a period of two (previously fine) years from the date it is imposed. [Previous warnings may also be taken into account by the tribunal, when determining whether a doctor’s fitness to practise is impaired.] The tribunal will consider the seriousness of the factual findings and look at whether the doctor has remediated their shortcomings, overcome any illness, shown sufficient remorse and insight, and whether there is a public interest in finding impairment. If the FTP tribunal determines that the doctor’s fitness to practise is impaired, the case will move to the sanction stage.

As an alternative to imposing a sanction, the GMC/MPTS might agree to close the doctor’s case by way of undertakings. See our article on GMC Undertakings for further information.

At the Sanction Stage, the GMC MPTS tribunal may impose a sanction of: Conditions (restrictions), Suspension, Erasure, or make no order. Where a sanction of conditions or suspension is imposed, a Review Hearing will usually be convened at a later date. The GMC FTP tribunal will make reference (and bear in mind) the Indicative Sanctions Guidance, and various annexes, when determining the sanction to impose. The sanction must be proportionate and just bearing in mind the doctor’s position, and the public’s right to expect high standards of practice from doctors. The doctor or their representative will need to make persuasive submissions on the indicative sanctions guidance and where the particular doctor’s case falls within the spectrum of seriousness, and the relevance of any mitigation, remediation and learning. Future risk of repetition will also be a focus of the tribunal’s decision making process. A doctor’s level of insight is also of crucial importance. Doctors who are planning to return to work after a period of suspension might also bear in mind the recommendations of the Academy of Medical Royal Colleges (AMRC), set out in their publication (May 2012, Revised 2017), which offers helpful guidance that in some cases will be relevant to GMC cases: AMRC Return to Practice Guidance.

Where the tribunal imposes a sanction, the tribunal will also be required to consider whether to make an immediate order, to cover the appeal period set out in the statute (the Medical Act 1983, as amended). In many cases it is appropriate for a doctor to oppose the imposition of an immediate order. There are specific submissions that can be made at this point.

The following procedural flowchart guides us through the FTP hearing process:

Also download a copy of our GMC FTP Hearing Procedural Flowchart (in pdf format) – a simple diagram which explains the various stages of a GMC FTP hearing in a simple flowchart format.

Note that the above diagram does not show conviction cases, and decisions of other regulators in the UK or overseas. There is no misconduct stage for these type of allegations.

Documents / Evidence

It is crucial that a doctor who is facing a fitness to practise hearing thinks carefully about the documents (or evidence) that the GMC is relying upon, to see what evidence the doctor has in their possession, which may be helpful to either undermine the GMC’s case against them, or which can bolster their own defence.

Where a third party has possession of a document, whether in electronic or paper form, the doctor should request it from the custodian, in the first instance. The GMC can obtain documents in some instances from third-parties and a doctor should make an early request. Some electronic systems date and time entries made by a doctor (or others). Many systems have a forensic log which records alterations, and when they were made. Some systems also log when a particular clinical image was accessed, or when results and images accessed by a doctor. These might forensically assist a doctor in defending their position.

It should be noted that the MPT will not see any of the documents that were submitted by the doctor at an earlier IOT hearing, unless the doctor places them afresh in a bundle for the MPT hearing.

A separate bundle of documents is usually needed for the facts stage, the impairment stage, and the sanction stage.

A doctor might be questioned by the GMC barrister on every paragraph of every document in the evidence bundles, and on their approach to matters of principle, policy, and the general history of the case. It is therefore essential that a doctor who is facing fitness to practise questions has prepared properly. Questions are likely to include whether the doctor did something previously and how they view it today. Insight and remediation is likely to be relevant here.

Witness Timetables

Doctors should observe that hearings do not always go to plan. There can be unforeseen events, such as equipment failure, the illness of a witness or court officer, a delay in the hearing starting due to the late arrival or unavailability of a witness on a particular day. The list is endless.

In some cases a witness might be questioned for longer than anticipated, having a knock on effect to the witness timetable. Witnesses might therefore lose their ‘slot’ to give evidence, as might the doctor facing proceedings. Doctors should take this into account when arranging their own and their witnesses’ attendance at a MPTS hearing.

The Honesty and Integrity of a Doctor within a MPTS Hearing

Some doctors panic about the impact of a GMC case on their own reputation or of losing their case to such a degree that it deleteriously affects their judgement. Some doctors have been found to have created false documents to bolster their defence, or to cover up their shortcomings. Such conduct can be fatal to their case, if discovered, which it usually is within the forensic process of a tribunal hearing. Of course, a doctor should never invent evidence in support of their defence case. To do so would be contrary to the GMC code of conduct and could constitute perjury (lying on oath), which in turn carries penalties. Doctors should always be truthful in their dealings with the GMC and MPTS. To do otherwise risks their registration.

Ensuring that Character Witnesses Know of the Full History of Events, Without Minimisation

It is important to ensure that all character witnesses are made fully aware of the history of events that led to the GMC allegations being brought, so that the doctor gains full credit, where possible, for being candid and transparent. Such conduct is reassuring to tribunals and gives them an opportunity to explore whether the doctor has developed insight. In dishonesty cases, the witnesses’ knowledge of the fullness of the admissions (and history) may well be tested, in order to see whether the doctor has minimised their responsibility.

Appraisals

A doctor should fully reflect about their past (mis)conduct, without minimising their responsibility and without withholding highly relevant facts. Doctors who fail to be fully frank with their appraiser, or who actively withhold information or who misdirect their appraiser, will lose valuable credit when they appear before the tribunal. The doctor might also be found to have been dishonest in their appraisals, and so it is essential to take steps to avoid this happening from the outset.

Health-Related Matters; Relevance of The Doctor’s ill-health:

Matters concerning a doctors health will be kept confidential by the GMC. Any determination made in public will not make express references to a doctor’s health. Further, the FTP tribunal can go into private session, so that the press and public are excluded for that element of oral evidence and the delivery of any judgment on the case, relating to health.

There is a difference between formal GMC Health Cases (where impairment of fitness to practise is alleged on health grounds), and, by contrast, a doctor relying on health matters as a mitigating feature, to explain the reasons why they conducted themselves (by act or omission) in the way alleged. A doctor whose health has contributed to their having committed misconduct should seek the contemporaneous medical notes (attendance at GP, occupational health, private clinicians), and give consideration to obtaining a medical or psychiatric report to help explain matters.

Criminal Convictions / Police Cautions: There is a modified procedure in conviction cases and police caution. There is no ‘misconduct’ procedural stage, as criminal convictions are deemed to be more serious than simple professional misconduct. A doctor’s fitness to practise may be found to be impaired because of the conviction or caution. Find here the same diagram as above but with the conviction route included (in pdf format): GMC MPTS FTP Conviction Route Flowchart

Conditional Discharge 

Note that a conditional discharge is considered a conviction and this may affect the way the case is presented.

High Court: Wray v The General Osteopathic Council (2021) EWA Civ 1940 (Dec 2020)

Court of Appeal: Wray v General Osteopathic Council [2021] EWCA Civ 1940 (December 2021)

Convictions and the Medical Act 1983:

(2) A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of –

(a) misconduct;

(b) deficient professional performance;

(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;

(d) adverse physical or mental health; or

(da) not having the necessary knowledge of English (…[see other provisions])

(e) a determination by a body of the UK responsible… for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.

Overseas Decisions: See the case of Alhy.

Publication of GMC MPTS FTP Decisions: The GMC will publish decisions in the on-line List of Registered Medical Practitioners, in accordance with its policy: GMC Publication and Disclosure Policy (GMC Publication) (in pdf). FTP determinations are usually accessible to the public via the website that allows them to check a doctor’s registration status. The policy (in 2015) sets out that the determination will be permanently accessble to the public.

Case Law: A number of cases have been decided on appeal that influence the way in which MPTS FTP tribunals make decisions. Read about some of those cases in our GMC Case Law Digest

Half Time Submissions – No Case to Answer:

R (Sharaf) v GMC 2013 EWHC 3332 (Admin) approved the approach in R v Galbraith [1981] 1 WLR 1039

Appeals: A doctor who is dissatisfied with the outcome of a GMC / MPTS FTP hearing can, in certain circumstances, appeal the GMC / MPTS FTP tribunal’s decision, if the decision was wrong or there was an unjust outcome due to a serious procedural or other irregularity. View our Appeals page for more details.

For more information about the services that DDS provides to doctors, browse this website or call us to discuss any GMC / MPTS related legal matter. We will discuss with you without commitment how DDS might be able to advise or represent you in relation to any GMC matter. Our lawyers regularly defend doctors before the General Medical Council and will be happy to assist you.

Applications for Withdrawal of GMC Allegations

In some circumstances, a doctor can apply to have their GMC allegations withdrawn, prior to a fitness to practise hearing takes place before a tribunal. For more information on how this procedure operates, see our: Guidance on Applications Pursuant to Rule 28

GMC Publication Policy in Relation Erasure Orders by MPT

The GMC will publish for 10 years the decision of the Medical Practitioners Tribunal to erase the doctor’s name from the register, after which time it will be removed. If a doctor were to later be successful being restored to the Register, the erasure determination would be published again. The determination can be found against the doctor’s name, when checking the register. See the: GMC Policy on Publication (as of January 2021).

Doctors and Retirement from Clinical Practice – Effect on MPT Fitness to Practise Proceedings

Unless a doctor formally applies for Voluntary Erasure, the fact that they have retired will not generally be taken into account. There is still a risk that the practitioner might return to practice. See, by way of example, the case of General Optical Council v Clarke [2018] EWCA Civ 1463 (June 2018). See, also, the case of R (Gibson) v General Medical Council, where voluntary erasure was refused for a doctor who had retired, and the tribunal went on to make impaired fitness to practise findings, leading ultimately to the erasure of the doctor. The public interest in resolving complaints, upholding public confidence and protecting patients will be relevant to the consideration.

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