Voluntary Erasure
VOLUNTARY ERASURE
Voluntary Erasure (VE) and Administrative Erasure from the doctors’ register is a granted by the General Medical Council (GMC) only in certain prescribed circumstances.
This article summarises the provisions of the voluntary erasure procedure, in contrast to the administrative erasure provisions.
GMC’s Remit – The Over-Arching Objective and Voluntary Erasure
The GMC’s remit is to act in the public interest by pursuing its statutory overarching objective, namely:
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession.]
Bearing these principles in mind, the GMC will consider applications from doctors who no longer wish to retain their GMC registration as a Registered medical Practitioner. If the evidence demonstrates that the above principles would not be harmed by a voluntary erasure, VE might be granted.
Administrative Erasure
Where a doctor (who is subject to a fitness to practise investigation) no longer wishes to retain a UK registration, due to their retirement, their moving abroad, or another qualifying reason, the doctor may apply for administrative erasure. This is a separate procedure to the voluntary erasure procedure.
Voluntary Erasure
Where a doctor is the subject of a fitness to practise investigation, they must apply for voluntary erasure (VE). VE is not granted in every case. Where a doctor is facing fitness to practise (FTP) proceedings, a doctor might not be permitted to voluntarily erase their name from the register because of the “public interest” test not being satisfied, if the doctor were to be permitted to avoid a FTP hearing when it would not be in the public interest to allow that to happen. If the doctor is likely to return to practise in the future the GMC will also decline voluntary erasure.
Voluntary Erasure (VE) will generally only be granted if there is certainty about the facts of the case being investigated. If the case is at too early a stage of the investigation, the GMC will likely decline to process the application. Where the evidence is entirely available, so that a proper risk assessment can be perfumed by the GMC, the applications prospects will increase. Very serious allegations are less likely to lead to VE. The age of the practitioner, and when they last clinically practised will also be relevant. Likewise, whether the doctor is working or planning to work oversees is sometimes considered a relevant factor. The above panel guidance is helpful in understanding the principles by which VE applications will be considered. Providing the right evidence is therefore essential, to increase the prospects of success.
Doctors should be cautious about the content of their VE application. Doctors often state too much or too little in documentation submitted to the GMC. A VE application/submission from a doctor could in certain circumstances be used against the doctor in FTP proceedings, if the doctor were to state something that formed an ill-considered admission or denial of matters in evidential issue. It might alternatively be used against a doctor in order to demonstrate a lack of insight or lack of effective remediation.
Where applications are made in circumstances where a doctor is facing fitness to practise proceedings, any application for VE must be made with particular care. On occasions the application will need to be made to a Medical Practitioners Tribunal (MPT), which will decide whether to grant the application or not.
Doctors should not use the VE process as a workaround formula, in order to avoid having a fitness to practise hearing, if they intend to practise in medicine in the future. An application for Restoration to the Register would still involve close scrutiny of any allegations that have not been determined by the case examiners or a Medical Practitioners Tribunal (MPT). Restoration can only be granted if a doctor is entirely suitable to practise without conditions or undertaking, as the statutory scheme does not allow for such restrictions to be imposed on restoration. In other words, it is a return to the register unencumbered by any restrictions, or no return to the register.
The Voluntary Erasure application is now usually made through the GMC’s online portal for doctors. To make the application for VE, sign in to MyGMC or GMC Online and complete the application form. Certain evidence also needs to be provided.
Where the VE application is to be considered by the case examiners or a MPT tribunal, they must refer to the GMC’s guidance, and give reasons form their decision. Where the decision-makers depart from the guidance they must explain why they have done so. Any decision must be lawful, and if it is not so it may be amenable to judicial review. The guidance relevant to VE is the: GMC’s Guidance for Decision-Makers on Voluntary Erasure (VE) (dated September 2020). This guidance sets out in detail the matters which will be relevant to the consideration by decision makers of whether to grant VE. A doctor should read this document carefully and take legal advice so as to ensure they can provide evidence that satisfies the criteria as best they can.
Legislation and Case Law Relating to Voluntary Erasure
The legislation governing voluntary erasure, made pursuant to s.31A of the Medical Act 1983 (as amended), is as follows:
The General Medical Council (Voluntary Erasure and Restoration following Voluntary Erasure) Regulations Order of Council 2004. Where a case has been referred to a fitness to practise hearing, s.3(8) applies, so enabling the Medical Practitioners Tribunal to deal with it.
There has been much case law generated on the issue of Voluntary Erasure:-
In R (Gibson) v GMC [2004] EWHC 2781 (Admin), the doctor applied to the High Court to bring proceedings by way of judicial review, to challenge the panel’s refusal to grant Voluntary Erasure during a fitness to practise hearing. The GMC had alleged that they doctor’s fitness to practise was impaired by reason of gross errors, a failure to meet standards in his clinical work, and that there had been a partial cover up. The High Court held that the reasoning of the panel, to proceed with the fitness to practise case in the public interest, was a reasonable one. The panel had properly justified its decision, which could not be said to be perverse in law. (November 2004)
In R (on the application of X) v General Medical Council [2011] EWHC 3271 (Admin) the High Court confirmed that there should not have been a public announcement of the specific illness that the applicant doctor had been suffering from. It was held that the tribunal should have instead recorded something sufficient to inform the public, such as: “a severe health problem” (or “a serious illness“), possibly written in the determination as “a severe health problem that is not likely to be resolved in the near future“. So as to justify confidence in the profession, when permitting a doctor to avoid fitness to practise proceedings due to their ill-health. (December 2011)
In R (on the application of Jackson) v General Medical Council [2013] EWHC 2595 the High Court quashed a GMC decision refusing voluntary erasure, where the doctor was unwell, a Fitness to Practise (FTP) hearing would be difficult for him to participate in, and the doctor was not planning to return to work for reasons directly connected with ill-health.
In R (on the application of Dr LI) and the General Medical Council [2013] EWHC B2 (Admin) the High Court held that the GMC may refuse to grant Voluntary Erasure (VE) where there is a realistic prospect that a doctor may seek to practise elsewhere, outside of the UK, or return to UK practise in the future. See, especially, paras 68 and 69. (January 2013)
In GMC v Jooste [2013] EWHC 1751 (Admin) the High Court held that a formal application for Voluntary Erasure must be made to the GMC, and that a simple communique from a doctor stating that they had resigned from the Register was not sufficient to bring GMC proceedings to an end.
In Igwilo v GMC [2017] EWHC 419 (Admin) a somewhat complicated history, in which it was held that erasure by way of a fitness to practise hearing decision was appropriate. There had been a misunderstanding on the part of the GMC registrar, who had granted VE in error. The registrant was then restored to the register administratively by the GMC, and the fitness to practise then process progressed. The judge declined to fully hear the arguments that were belatedly advanced by the doctor. (January 2017)
In Goodchild-Simpson v General Medical Council [2020] EWHC 271 (Admin) the doctor applied for Voluntary Erasure at the beginning of a MPT hearing. The tribunal declined to deal with it. Tribunal decision upheld on appeal, due to new allegations, with some reference to the last minute nature of the application. (February 2020
In General Optical Council v Clarke [2018] EWCA Civ 1463 the doctor had retired, but a finding of impaired fitness to practise was found by the fitness to practise panel. This findings as upheld by the court. The principles were similar to those elucidated in Gibson, ante. The case did not expressly relate to voluntary erasure, but was more a point of principle relating to impairment of fitness to practise. (June 2018)
Professional Standards Authority for Health and Social Care v General Medical Council & Dighton (Rev 1) [2020] EWHC 3122 (Admin) – Voluntary Erasure is not a sufficient disposal in some classes of cases that warrant erasure, to meet the level of seriousness. (November 2020)
At Doctors Defence Service advises doctors on the formal application process for VE and assists doctors in formulating applications. Doctors Defence Service provides legal advice and legal representation to doctors. If you seek legal guidance or legal advice on the topic of voluntary erasure, or seek assistance in drafting an application for VE, to be submitted to the GMC, then you can contact in confidence and without obligation, our legal team on 0800 10 88 739 to discuss your VE legal issue.