Remediation

Remediation in GMC Cases - Taking Remedial Steps

Doctors and Remediation in GMC Cases

The GMC requires those doctors who get into difficulties to take active steps to overcome any perceived or actual shortcomings in their practice. This is called remediation.

Competence and suitability to practise may be in issue as a consequence of identified failings. Concerns may have been exaggerated in certain cases, and on occasions malicious complaints may have been made against a doctor. While in other cases the doctor may have no insight into the level of the problem and the complaints may well be the tip of the iceberg.

The GMC assessment process of doctors, to identify weaknesses, can take some considerable time and will often turn on expert evidence. It is not always easy for a doctor to remedy their failings. In some instances the doctor may choose to refute the allegations made against them.

The cost of remediation can also be prohibitive, financially and in terms of time-commitment. Some doctors end up funding their own package of remediation. While other doctors may be lucky enough to be offered a package of remediation by their employer, this is becoming less common due to the finite resources that employers have access to.

What is remediation?

Remediation (in GMC cases) is where a doctor takes proactive steps to overcome their shortcomings or sub-optimal conduct, to acquire full insight, achieve competence, and evidence a low risk of repetition in the future, as a consequence of the steps they have taken.

Examples of Remediation

Some examples of how doctors have taken steps to remediate their shortcomings may be useful to explain the process:

A doctor who has been dishonest might go on a probity and ethics course (both online and face to face), then write a reflective account of what led to their dishonesty and what they have learned.

A doctor who has self-prescribed or prescribed for close family or friends, or who prescribed outside of policy, and who was unaware of the policy limits (or who disregarded the policy), might need to update themselves on current GMC policy and local policies, and do appropriate courses, as well as specific reading. They would possibly need to do a probity course, too, if they had actively or recklessly disregarded policies.

A doctor who has committed plagiarism or academic fraud/misconduct will need to attend courses on academic writing and on preserving data by way of a safe chain of custody. Authors and contributors to academic articles have a duty to ensure the reliability of data used and conclusions drawn, giving appropriate credit and citation to other academics for previous work which is mentioned or used. A doctor needs to be able to justify their academic findings even years later, if challenged, and so the preservation of original data (in sufficiently verifiable form) is something that needs to be considered.

A doctor who has been found to have acted sub-optimally in their clinical sphere might have to be supervised for a while during clinical procedures, and be signed off as competent, also going on courses that evidence updating. This is often referred to as “re-skilling”.

A doctor who has behaved badly at work or in their private life might see a behavioural psychologist and a counsellor to understand their triggers and overcome their misunderstandings and impulsivity through a course of CBT or other therapies.

A doctor who has an alcohol or drug dependency might seek help from AA, and see a drugs and alcohol specialist to become abstinent.

A doctor who has beaten their spouse will need to demonstrate that they understand about the impact on their partner or ex-partner, and any children they have, as well as the impact in wider society of domestic violence of undermining confidence in the doctor and the medical profession.

A doctor who has inappropriately touched a colleague or patient, or had an inappropriate emotional or sexual relationship will need to demonstrate their understanding of boundaries, and understand how they crossed the line, and the impact of their conduct on others.

A doctor who has run a business or firm in a manner that causes harm or a risk of harm, or which has acted unethically, unlawfully or in breach of regulation, might need to make structural and personnel changes, including staff and self training, to ensure that there is no risk of repetition.

A doctor who has acted out of character due to burn-out, fatigue or mental ill-health would need to work at resilience, and ensure that they had a stay well plan, and an understanding of the warning signs of getting into difficulties.

Apology

An apology to those who have been harmed by a doctor’s conduct will also be seen as a remediative step.

Risk of Repetition

Doctors will need to be able to demonstrate that the risk of repetition of the same conduct is negligible, if not nil. This is not an easy task, and a mere verbal or written assurance will be unlikely to be enough. Respectable and detailed work on remediation therefore needs to be evidenced in a variety of ways, such that it would be reassuring to others who scrutinise such evidence.

Peer Discussions

It is advisable for doctors to have a professional discussion about professional values with fellow registered medical practitioners of the same grade or senior, as well as juniors and other staff members. This should be evidenced. See our guidance on: Holding Discussions With Colleagues on Professional Values

Power Dynamics

A recognition of the power dynamics in the workplace, and in some situations outside of the workplace, can be an important factor when responding to some types of allegations.

By way of example, junior staff may be intimidated or unable to say “no” to senior staff members, or otherwise feel compromised by the conduct or requests of a doctor – especially if the doctor is senior to them. Even the title ‘doctor’ can be intimidating to some people.

Some colleagues may feel flattered by the attention of another colleague, particularly someone more senior, and misunderstandings may arise.

Lines can easily be crossed if conversational boundaries are not maintained. “Banter” and “joking” can also backfire – and cross a line – without a doctor being necessarily cognisant, especially if the interaction is a jovial one in appearance, or starts out that way. For that reason, doctors need to avoid banter that could be misconstrued, or which is of a sexual, tongue-in-cheek or lewd nature.

Patients may feel disempowered to respond to a doctor, or to express a preference, or to refuse something, unless the doctor enables them to have the space to do so. Patient-doctor power dynamics can be fraught with difficulties but the right approach can reduce the risk of misunderstandings occurring, and also reduce the risk of inappropriate conduct occurring.

It is the doctor who must maintain their own boundaries at all times, not just the person that they are engaging with.

Tribunals will examine the steps a doctor has taken to remediate their past (mis)conduct, and explore the degrees of insight that a doctor has acquired. Giving examples of how the doctor has made changes to their practice, and to their personal interactions, will likely be of assistance.

Being able to recognise power-dynamic risks and being able to factor in strategies to avoid them: to give people space, and time to think, and for them not to be put under pressure, or to be unduly influenced, or to being taken advantage of, is essential. A tribunal will look at whether a doctor has taken this on board. It is not enough for them merely to say that they have. They must evidence it through their writings on how they have applied their remediation.

Remediation includes applying the lessons learned, in a meaningful way, which is relevant to the conduct complained of and which shows that the risk of repetition is ameliorated by the doctor’s newfound or improved understanding of what went wrong in the past.

Competence

Being able to demonstrate competence may require a significant amount of work, study, and observation of others carrying out the same procedure; performing tasks under observation, and being signed off as competent. Competence in skills, knowledge and behaviour will each be measurable to some extent.

The degree and nature of evidence that will be needed to satisfy the GMC or MPTS tribunal that a doctor has achieved competence will be dependent on a number of factors, including:

(a) how serious the departure from clinical or behavioural standards was in the first place;

(b) the complexity of the area(s) of concern;

(c) how entrenched the sub-optimal conduct was in the past, and whether the doctor failed to respond to constructive criticism/appraisal;

(d) whether the practitioner acted deliberately by act or omission;

(e) the level of seniority and responsibility at the grade the doctor has been working at and intends to work at in the future;

(f) the approach of the doctor once the concerns were identified/raised;

(g) whether the doctor has taken responsibility for their part in the history of concern;

(h) how proactive and sincere the doctor has been to work on achieving competence;

(i) the quality and amount of evidence provided to demonstrate competence;

(j) where full competence has not yet been achieved, whether the doctor has devised an action plan to achieve competence, and the steps that have been taken to date.

Clinical Attachments

A doctor who has been suspended may find it difficult to remediate their shortcomings because they are excluded from their clinical job. Some doctors therefore undertake a period of clinical attachment, so as to keep up to date and observe current clinical practice. Doctors who have conditions of practice may also struggle to find work, and so undertake a clinical attachment. The GMC has written guidance to doctors undertaking clinical attachments who are the subject of conditions or a suspension. Doctors must ensure that they comply with their conditions, or the restrictions that a suspension imposes. Read the GMC document: GMC Guidance on Clinical Attachments

The GMC and others organisations have also commissioned research on remediation and the ability of doctors to achieve it, which is useful reading:

The Royal Colleges: Remediation and Revalidation – Report and Recommendations (2016).

Wide reading about remediation is helpful to any doctor seeking to achieve remediation. It is useful to discuss remediation with specialists and peers, to ensure that one is adopting the right approach.

Action Plan (Personal Development Plan)

A doctor should devise an action plan or personal development plan, with the assistance of suitably qualified and competent clinicians or other professionals. This will provide evidence to the journey the doctor has been on, what they have achieved on their journey, and whether the shortcomings will be remediable in the future. A personal development plan is a recommended step for a doctor to take, in order to evidence their learning in a way that is evidentially weighty enough to pass GMC/MPTS scrutiny. It is not enough to merely attend a course and produce a certificate of attendance. Aims and objectives of courses attended should be set out in advance, with measurable outcomes that can be fully evidenced on completion. A daily diary of the steps taken over time can also be of assistance in evidencing learning.

Remediation Case Law

Case Law on Remediation in Regulatory Proceedings

“It must be highly relevant in determining if a doctor’s fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated.”

But note that not all misconduct is viewed as easily remediable. Both dishonesty and sexually motivated behaviour fall into a category of conduct that is deemed harder to remediate because it relates to a doctor’s core beliefs and decision-making that has harmed others.

Williams v The General Dental Council (Rev1) [2022] EWHC 1380 (Admin) – Allegations relating to dishonesty. Remediation found to be of a higher quality, which made a difference to the analysis of the appeal court, as follows (paras 145-146):

“145. What did the Appellant do to remediate her errors? After the investigation started, the Appellant engaged in a wide and long list of effective training on the issues relevant to her admitted and later proven misconduct in a mature and insightful way. The road to redemption starts which insight and understanding and travels through remorse and learning to improvement.

146. The Appellant’s reflective statement on her errors is insightful in my judgment.”

While this is a dental case, the same principles apply in GMC/MPTS proceedings. (June 2022)

*

In the case of Dr Luthra v General Medical Council (2013) EWHC (Admin) erasure was just where the MPT panel had found that the doctor’s lack of skill and knowledge would be at risk if the doctor continued to practise. The doctor had been given opportunities to demonstrate a minimum level of knowledge and skill.

The appeal judge stated, at (41):

I do not consider that the [GMC/MPTS panel] decision not to afford the appellant any further opportunity to address issues of remediation and insight at a further review hearing was unreasonable. The history demonstrates that the appellant had been offered manifold opportunities. It can fairly be said that the GMC bent over backwards to afford him these opportunities, but that on account of core deficiencies in his knowledge and competence he was not able to avail himself of them. Had his performance in the 2009 assessment been borderline then it might have been reasonable for the Deanery to have exercised its discretion to allow him to attempt once again the entry exam for the induction and refresher scheme. But his performance in the second assessment was nowhere near borderline“.

(February 2013)

The Failure to Remediate

Where a doctor has not taken active steps or merely given lip service to the concerns, they risk being suspended or heavily restricted, or erased from the medical register. A lack of quality evidence of remediation can also lead to the same outcomes. Where a doctor has tried to remediate but has been unsuccessful, the same risks apply. Where a doctor has not been able to show evidence that they are on a journey to overcome their shortcomings, they will be at risk of such sanctions.

Is the Conduct Remediable?

Not all conduct will be deemed to be remediable. Some departures from Good medical Practice will be seen as so egregious that it makes a doctor fundamentally incompatible with the practise of medicine, whatever steps they take to remediate. (See the GMC’s Sanctions Guidance for more details.) In such circumstances, erasure is the only appropriate disposal. Whether a doctor will be able to apply successfully for restoration in the future will be dependent on a number of factors.

The GMC and MPTS Sanctions Guidance (February 2018):

Paragraph 31 of the GMC MPTS Sanctions Guidance states:

“Remediation is where a doctor addresses concerns about their knowledge, skills, conduct or behaviour. Remediation can take a number of forms, including coaching, mentoring, training, and rehabilitation (this list is not exhaustive), and, where fully successful, will make impairment unlikely.”

Conclusions

Remediation is a complex area, which requires great planning and considerable time invested. A failure to properly remediate can lead to suspension or conditions, with the possibility of review hearings to examine progress. Alternatively, it can lead to erasure.

At a review hearing, the tribunal can close a case or impose the same sanction (suspension or conditions) or a further sanction, which could be erasure. It is essential to get remediation right from the outset.

Some doctors feel a lot of anger towards the GMC and refuse to actively remediate. Where this has happened, some doctors have been erased.

Doctors Defence Service can advise doctors on remediation in GMC Cases and MPTS hearings. For more information, call us on 0800 10 88 739