GMC Investigations

GMC Investigations (Rule 4 and Rule 7 Stages)

The General Medical Council investigates all allegations made against doctors that may indicate that a doctor’s fitness to practise is impaired, because of serious professional misconduct, ill-health, or seriously deficient performance, conviction or police caution. The processes and procedures of a GMC investigation are governed by statutory rules and GMC policy. Some GMC investigations are wide-ranging, while others are narrow in scope.

The GMC does not usually investigate allegations that are more than five years old, unless a Registrar holds that it is in the public interest to do so. Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 states:

‘No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest for it to proceed.’

Cases such as serious sexual allegations or significant fraud may meet the public interest test. This list is not exhaustive and does not apply to convictions for incidents that occurred more than five years prior. For more information on the matters that the Registrar will take into consideration, see the GMC’s guidance: GMC Time Limits for Investigations

Five-Year Limit Case Law

Note that allegations should not be investigated where they are more than five years old, except in the public interest, as per the statutory scheme. The GMC has produced guidance for decision-makers considering the five-year Rule: Supplementary guidance to support decisions on applying the five-year rule (Doctors)

Some cases that touch on the five-year Rule include:

In R (Young) -v- GMC [2021] EWHC 523 (Admin), the appeal judge held (para 62) that the GMC could correct errors it had made to investigate allegations. This avoids the need to apply to the superior courts for a Judicial Review:

62. ‘…the Registrar may revoke and correct a decision to pursue allegations further under rule 4(5) on the grounds of a fundamental mistake as to fact’

Chaudhuri v GMC [2015] EWHC 6621 (Admin) – a case which explored the Registrar’s powers in examining factual allegations after the 5-year statutory time limit had expired (July 2015).

And, R (Dutta) v GMC [2020] EWHC 1974 (Admin) – a case that was referred to a fitness to practise hearing: the court quashed the charges that were more than five years old at the time of referral. (July 2020)

Lee, R (on the application of) v The General Medical Council [2016] EWHC 135 (Admin) – (1) Only the registrar has the power to determine the five-year rule – not a fitness to practise panel or others. (2) Judicial Review should be within 3 months of the GMC registrar’s decision. The JR  had been lodged well out of time. The case touched on other matters and concerned an overseas decision (Singapore). Concerning the conflict of laws point, the judge held (para 28):

Conflicts of law

28. Neither side called evidence of Singapore law, or sought to suggest that the rules of statutory interpretation were any different from English law. In the absence of evidence of foreign law, the court will apply English law (see Dicey on Conflicts of Laws, Rule 18 and Bumper Developments Corpn v. Commissioner of Police of the Metropolis [1991] 1 WLR 1362, 1369 (CA)).

See also: The Queen ex parte Kashyap v GMC  [2009] EWHC 2873 at para 11 (not on Bailii); and Dzikowski v GMC [2006] EWHC 2468 at para 22. However, these cases were doubted in Zia v General Medical Council [2010] EWHC 3036 (Admin).  Mr Justice Mitting held (para 11): “The Panel decided, correctly, that it did not have jurisdiction to entertain such a challenge. Such a challenge could only be made by a claim for judicial review… The claimant had a choice of remedy: to seek to apply for judicial review [of the GMC decision] or to contest the allegations on their merits. He chose the latter. He must abide by his choice.” Indeed, according to a 2021 tribunal circular, this is the law that the GMC applies.

In Dutta, R (On the Application of) v General Medical Council (GMC) [2020] EWHC 1974 (Admin), in a claim for Judicial Review,  Mould J held that if within a Provisional Enquiry more information is needed about a doctor’s insight or remedial action, the relevant date is usually when the referral was first received by the GMC, because the initial information suggests that there may be a concern about the doctor’s fitness to practise. However, at paragraph 16(2) it was held:

Conclusion. … 16(2) But none of the 2009 Allegations should have been before the Tribunal. … Upon review, Dr Dutta’s case is upheld: the Five-Year Decision was unlawful and so was the Referral Decision, insofar as it relates to the 2009 Allegations. …

87. …the words of Rule 4(5), it cannot be said that things that were alleged to have happened in August 2010, following the post-operative scan, were “the most recent events giving rise to the allegation” in paragraph (a), that Dr Dutta failed to provide appropriate pre-operative advice. Nor, obviously, can the alleged events of August 2010 be “events giving rise to” the allegation that Dr Dutta offered the patient a financial incentive in 2009. On the face of the reasoning set out above, the AR [Assistant Registrar] proceeded on the erroneous basis that where a patient makes a number of related allegations all concerned with a single “course of treatment”, the term “allegation” should be given some composite meaning, and the 5-year rule applied to the whole. That is wrong in law.

(22 July 2020)

Pre-Investigation Enquiry (called ‘Provisional Enquiries’)

The GMC has introduced a new procedure called Provisional Enquiry to close cases early without a full investigation. The GMC will obtain certain information from the doctor referred, and also from their employer and others. If the GMC is satisfied that there are no significant concerns that the doctor’s fitness to practise is impaired, they will close the case.

The GMC brought in these changes in July 2016 and has since rolled out a Provisional Enquiry process, whereby the GMC obtains information at an early stage to determine whether there is evidence that needs a more thorough investigation. The GMC will disclose to the doctor the information obtained, in most instances, and ask the doctor to submit comments. It is envisaged that many cases will be closed at this stage because the evidence discloses that there is no justification for a full investigation. The GMC will use a preliminary enquiry procedure where a doctor has raised patient safety concerns (and counter-complaints have been made against the doctor) or where there has been a single incident concerning poor clinical care, either of which (on provisional investigation) does not call into question a doctor’s fitness to practise. The GMC is planning to extend the scope of provisional enquiries over time to include more complex cases. The GMC’s analysis of the pilot process shows that many cases are closed at this early enquiry stage, saving time, public money, and reducing anxiety for the doctor concerned.  We can assist doctors in responding to the GMC at the provisional enquiry stage. See our dedicated page on the GMC’s Provisional Enquiry process.

Criminal Convictions and Cautions

Convictions for serious offences are usually referred by an Assistant Registrar straight to a fitness to practise hearing, and so the Rule 4 and Rule 7 stages set out below will not always apply. The flowchart below does not therefore, include the criminal cases route.

Where a doctor has a conviction but additional concerns have been raised against the doctor, such as misconduct allegations, or allegations of ill-health or deficient professional performance, the Rule 4 and Rule 7 procedures will still be followed in relation to those concerns. Occasionally, a conviction case will be closed without further action if it is of a personal nature and does not call into question a doctor’s fitness to practise. A similar procedural approach is taken to cautions.

NHS Performers List (Requirement to Notify the NHS of a GMC Investigation)

For doctors on the NHS performers list, or similar, in the United Kingdom, there is an obligation to inform the NHS of the commencement of a GMC investigation. By way of example, section 9(2)(j) of the NHS (Performers Lists) (England) Regulations 2013 requires that a doctor notify the board within 7 days of the investigation commencing, pursuant to paragraph 9. This notification must include an explanation of the circumstances giving rise to the investigation and copies of any relevant documentation.

GMC Rule 4 Letter Stage

The GMC case officer sends doctors an initial GMC Rule 4 letter, which outlines the complaint or allegations. The doctor has a discretion whether to respond. It is not always necessary to respond, but each case very much turns on its own facts. A doctor would be best advised to identify the root cause of the complaint and undergo remedial steps where competence may be lacking. Some doctors lack insight into their own level of competence and should ideally take legal advice as soon as is reasonably practicable, so that objective advice can be given about the steps the doctor might take to improve their prospects of success.

An Assistant Registrar will decide whether the case should proceed to further investigation.

In some instances, the GMC will invite a doctor to undergo a Performance Assessment or in health cases, a medical assessment. If a doctor does not fare well during the performance assessment or they are found to be unwell, they may find that restrictions are imposed upon their registration by an Interim Orders Tribunal (IOT). Some allegations involve references to personality issues, which are suggestive that the doctor has a deep-seated attitudinal problem that is compromising their ability to function, both collaboratively with other staff or safely when interacting with patients. In almost all cases, the GMC will write to the doctor’s various employers (not only the main employer) requesting information about whether there are any concerns about the doctor’s fitness to practise by way of health, conduct or competence. The replies received will inform the GMC on how wide the investigation should become into the doctor’s current fitness to practise. We can assist doctors in the compilation of replies at this stage of the GMC proceedings.

A doctor who is facing allegations of misconduct should look at the allegations in detail and determine the steps of remediation they might undertake to demonstrate insight, learning and ongoing safe practice, especially where the misconduct is admitted. In some instances, sub-optimal practice or a poor decision can be quickly remedied by way of remediation. We can advise doctors in relation to the steps they should take to do this.

Where misconduct has occurred but can be classified as non-serious, the case can arguably be closed on paper. Nevertheless, see the case law arising from the case of Schodlok which might influence the case examiners at the Rule 7 stage.

However, see how the judge in Ahmedsowida v General Medical Council [2021] EWHC 3466 (Admin) found that the tribunal in another case (not at the rule 7 stage) had taken the wrong approach. Mr Justice Kerr:

102. Turning to my reasoning and conclusions, I start by considering the decision in Schodlok. The MPTS tribunal had found four serious misconduct matters and six non-serious misconduct matters proved. Vos LJ explained (at [17]-[18]) that the court would consider four issues. The third was whether the panel had been right to find the doctor’s fitness to practise impaired as a result of the instances of serious misconduct that were proved.

103. The fourth, which was to be considered within the rubric of that third issue, was:

“whether it is open to a fitness to practise panel to conclude on the basis of a series of findings of non-serious misconduct that they collectively constitute serious misconduct”.The court was not asked to consider and did not consider whether it was open to a panel to elevate to “serious” misconduct a matter that in isolation would be non-serious, where that matter is considered alongside another matter which in its own right constitutes serious misconduct.

104. Vos LJ’s actual decision, with which Moore-Bick LJ agreed, on the fourth issue (considered as part of the third issue) was at [62]: “I do not think it was open to the Panel in this case to bring in findings of non-serious misconduct in relation to the treatment of staff apart from Mr Marshall to feed its finding that Dr Schodlok’s fitness to practise was impaired.” The panel had, impermissibly, done that and its decision could not stand.

105. In that context, his further comment was, at [63]:

“I do not think that we should opine on the theoretical possibility that, in a particular case on different facts, a series of non-serious misconduct findings could, taken together, be regarded as serious misconduct. For my part, I would not think that the possibility of taking such a course in a very unusual case on very unusual facts should be ruled out, but I would prefer to leave the argument for a case in which such facts were said to arise. In the normal case, I do not think that a few allegations of misconduct that are held individually not to be serious can or should be regarded collectively as serious misconduct.”106. Beatson LJ’s view was less tentative. At [70] and [71], he said:

“70 … I am less sceptical than he is about whether a series of non-serious misconduct findings could, when taken together, be regarded as serious misconduct which impairs a doctor’s fitness.

71. I consider that, notwithstanding the virtual unassailability of the findings of primary fact and assessments of the credibility of witnesses by the specialist Fitness to Practise Panel, this is a case in which the appeal from the Panel should be allowed. This is because, for the reasons my Lord has given, the Panel … took into account its findings of non-serious misconduct in determining whether Dr Schodlok’s fitness to practise was impaired”.

107. To those observations from the Court of Appeal, the tribunal might have shown greater respect than they did. Rightly, they did not attempt to decide the point left open by the Court of Appeal and no more will I. But it is clear that they did not properly understand Schodlok. There was no mention of Beatson LJ’s view being tentative and very preliminary, as well as (in a minority) less sceptical than that of Vos LJ with whose judgment Moore-Bick LJ agreed.

108. Nor was there any comparison with the factual position in Schodlok; nor any consideration of whether the facts were exceptional here. Nor did the tribunal consider properly whether the GMC had sought as part of its case to cumulate a large number of findings of non-serious misconduct so as to elevate the misconduct to the level of being serious. That was, it seems to me, not the GMC’s case.

109. The tribunal appeared to regard Beatson LJ’s obiter observations as providing them with carte blanche to cumulate charges considered in clusters. That approach is not supported by Schodlok or any other authority cited to me. While the situation is different from that in Oyesanya because, in this case, the concerns were not merely generalised but specified, there was no clear foundation in authority for the cumulation exercise undertaken.

110. I agree with Mr Forde that the tribunal failed to consider whether there was a large number of non-serious misconduct findings making up a series. The charge elevated to serious misconduct (charge 15b) was one in a series of only three. Moreover, the other two (charges 15a and 15c) were not the subject of findings of non-serious misconduct but of serious misconduct. The cluster was too small and the other two components of it were not the right ones.

111. The cumulation exercise, if permissible at all, is supposed to involve the cumulation of non-serious with other non-serious misconduct findings; not of one non-serious misconduct finding with two findings of misconduct that is serious in its own right. In the latter context, there is no good reason to cumulate; the quality of the conduct is already correctly expressed, without the need for any cumulation.

112. In the present case, as in Schodlok, there was no “last straw” as where a series of minor incidents, relatively trivial in themselves, when taken together is too serious to dismiss as not capable of impairing fitness to practise. There was nothing analogous to the series of minor niggling fouls in a football match, eventually cumulated to merit a yellow card, or even ultimately a red one.

113. Wherever the boundary lies between permissible and impermissible cumulation (which I do not attempt to decide), it is clear that the tribunal misapplied Schodlok by wrongly placing this case on the far side of that boundary. It ought not to have elevated charge 15b to the level of serious misconduct. Whether that matters, in the context of the tribunal’s findings overall, I will consider later in this judgment.

(21 July 2015)

Defence Experts

In some cases, it is necessary to instruct a defence expert to provide an opinion: to advise the doctor on whether they have fallen into error, and, if so, on the steps of remediation they ought to undertake. Remediation might include undergoing courses and retraining, counselling, and a period of supervised practice.

Some allegations may be of such a nature that they include allegations of improper conduct (misconduct or deficient performance), as well as allegations of being impaired by reason of ill-health, whether it be a physical or mental health condition.

If you are in training, it is important to mention the details of the GMC Investigation in your ARCP ‘Form R’ each year. Doctors who are not in training should mention the details of the GMC investigation in their annual appraisals. In both instances, this should continue until there is resolution of the case, which might mean including details until after a tribunal hearing has taken place.

GMC Rule 7 Letter Stage

The GMC Case Examiners have an evidence- and judgment-based discretion to close a case without action; issue a Warning; Impose/Accept Undertakings; or refer the matter to the GMC/MPTS Fitness to Practise (FTP) tribunal for matters to be determined at a hearing. Toward the end of the GMC Investigation, the Case Examiners ( a lay person and a registered medical practitioner) send doctors a GMC Rule 7 letter that sets out the evidence and allegations. The doctor is invited to respond in writing. The doctor will need to provide evidence for what they are claiming in their response. Doctors Defence Service lawyers can advise on Rule 7 responses. However, the Case Examiners give doctors only 28 days to submit their response, and that is often too short a period for a doctor to act on legal advice (because of the defence evidence that will need to be acquired and compiled in a suitable form). An extension of time to reply will be granted only in certain circumstances. It is therefore important to undertake as many steps in preparation for the Rule 7 stage as is possible, from the outset of the Rule 4 stage.

Doctors should take legal advice as early in the GMC investigative process as possible, so as to ensure that they are undertaking relevant update courses and are taking appropriate steps to arrange supervision, assessment and audits. A doctor who does not wish to accept a warning may make representations to the Investigating Committee. A doctor may also agree to undertakings, by which a doctor agrees to conduct themself in a particular way, perhaps avoiding certain types of work or procedures until they have completed a period of formalised study.

The GMC Investigating Committee and the Case Examiners may take into account a doctor’s written responses, the doctor’s insight, independent expert evidence, evidence from lay people, clinicians, referees, auditors and patients. National and local guidelines, policy, and protocols will be taken into account, as will the GMC Code of Conduct for doctors: Good Medical Practice; and the GMC guidance: Deciding the outcome of an investigation (Doctors).

The two case examiners are required to arrive at an agreed-upon decision. If they cannot agree, then the case will be referred to the Investigating Committee. The case examiners and investigating committee members must apply the test below:

 

‘The Investigation Committee and case examiner[s] must have in mind the GMC’s duty to act in the public interest which includes the protection of patients and maintaining public confidence in the profession, in considering whether there is a realistic prospect of establishing that a doctor’s fitness to practise is impaired to a degree justifying action on registration.‘

 

The following diagram sets out the route for complaints handling at the GMC Investigatory Stage:-

As can be seen in the diagram above, the case examiners can refer a doctors case to a Fitness to Practise Hearing, agree Undertakings, or close the case with or without guidance, or with a Warning.

The above diagram is also available for download in PDF format: GMC Investigatory Stages Procedural Flowchart. On another of our DDS web pages, you can download our: Flowchart of the GMC Fitness to Practise (FTP) process.

The GMC, around the time of the Rule 7 stage, might choose to invite a doctor to a Doctors’ Meeting. Such meetings may provide further assistance to the doctor in providing relevant information and evidence to the GMC for their consideration. Great care should be taken in such instances. For more information on Doctors Meetings, see our Doctors Meetings Guidance page.

Doctors Defence Service provides legal advice and legal assistance in relation to GMC Investigations. If you would like to speak to one of our specialist lawyers about a GMC investigation into your conduct, competence or health, then telephone us in confidence on 0800 10 88 739

See our Specialist Lawyers’ Profiles

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