Introduction
Healthcare regulatory investigations are often stressful experiences for healthcare workers. A referral to their regulator (eg GMC, GDC, NMC) can be a daunting experience. There are opportunities for early resolution of such investigations at various stages in the process and organisations providing medical indemnity can assist with this.
Doctors and dentists being referred to the General Medical Council (GMC) and General Dental Council (GDC) respectively can face a wide range of allegations, from conduct and competence to their own health.
The healthcare regulators receive thousands of complaints each year and it is therefore important for appropriate legal representation to be arranged via their medical indemnity provider when a complaint is made.
Are regulatory investigations costly?
Fitness to practise cases can run from a couple of months to a couple of years or more, depending on their complexity and there are various elements to each stage.
Depending on the seriousness of the allegations, regulatory cases can be costly for medical indemnity providers, even if a generous indemnity figure is provided for cover.
What sort of issues add to the costs?
If a healthcare worker is referred to an interim orders hearing at the start of the case, costs will be incurred for preparation and attendance at the hearing. In addition, the costs of reviewing large bundles of investigation documents/medical records and preparing a written response (Rule 4 response) at the end of the investigation add to the costs.
For some cases a defence expert may need to be instructed. If the matter is referred to a final hearing, it may be listed for some weeks and there may be review hearings in the future, following that, depending on the type of sanction that is imposed by a Professional Conduct Committee/MPTS Panel.
Opportunities for cost-effectiveness
The fitness to practise process provides opportunities to provide evidence of insight through reflection and remediation of the issue(s) raised through relevant CPD in relation to the issue(s) and behaviours to which the allegations relate. Reflections on the allegations and relevant CPD can be used in a Rule 4 response with a view to convincing the Case Examiners that the matter does not need to be referred to a full fitness to practise hearing. This can be done without prejudicing the registrant’s ability to defend the case should such a hearing take place. Great weight is however given to evidence of insight, reflection, and remediation, which go to assessments of any attitudinal concerns and of risk of repetition.
There are alternatives to a fitness to practise case being referred to a final hearing, including the registrant accepting a warning (where appropriate), being offered undertakings (agreements to do/refrain from doing certain activities), or being offered a letter of advice from the Case Examiners to reflect on.
Here are our top tips to medical indemnity providers for cost effective management of fitness to practise cases: –
Top tips
- Assess the seriousness of the allegations and whether legal representation is required. (This is usually recommended early once a fitness to practise investigation has opened).
- Take note of the insured’s initial response to the allegations.
- If possible, group the allegations into themes (e.g. infection control related/record keeping issues), as it is helpful to do this to contextualise the case.
- Provide guidance to the Insured about gathering all relevant CPD relating to the issues in questions. If there are gaps in that CPD, advise the Insured to start undertaking CPD to address those areas now.
- Advise the Insured to draft a reflective statement regarding the allegations. The Insured can and should reflect on the issues raised, even if the allegations are not admitted.
- Gather all relevant information and send to instructing solicitors when ready to provide instructions on the matter.
- Having all of this information gathered early on will help the solicitor to meet the Rule 4 deadline and reduce the need for an extension of time to be requested from the regulator. This will help to ensure the proceedings are dealt with expeditiously for the Insured and keep costs on the matter down.
- Having an early conference on the matter can also ensure that expectations for the future of the case are managed and a costs budget can be set at an early stage for the expected costs to be incurred on the case.
- Liaise with the instructed solicitor on a regular basis to discuss costs and assess whether there are opportunities to get the case closed at the Case Examiners stage and explore the likelihood of that.
- If the matter is referred to a Professional Conduct Committee/MPTS hearing, discuss case management strategies with the solicitor for resolving the matter in a cost-effective manner. This may include whether an expert is needed for the types of allegations the registrant is facing, or whether any live witnesses other than the registrant are needed for the preparation of the defence.
The Insured should always be encouraged to seek specialist advice from their professional indemnity, medical defence organisations and/or legal providers in circumstances where they have received a fitness to practise referral from a healthcare regulator.
At Hill Dickinson, we frequently act for a wide range of healthcare professionals in fitness to practise proceedings and aim to achieve the best outcome for the registrant/Insured as efficiently as possible. If you have any queries on this article, or you require support with an investigation into fitness to practise, please do not hesitate to contact David Reddington or one of the team who will be able to advise further.
For further information, please contact:
David Reddington, Hill Dickinson
david.reddington@hilldickinson.com
