Length of GMC investigations: are things about to change?

On 25 May 2018 the High Court handed down its judgment in relation to the appeal of the decision of the Medical practitioners Tribunal Service in relation Dr Ruth Hill.

Dr Hill is a general paediatrician who qualified in Ireland and then worked in various countries including the USA. She also carried out academic work at Great Ormond Street Hospital and in other prestigious children’s hospitals.

Concerns were raised as early as 2002 in relation to Dr Hill’s performance, communication and interpersonal skills but it was not until 2010 that any concerns were raised with the General Medical Council.

In November 2010, an Interim Orders Tribunal (then an Interim Orders Committee) hearing took place and conditions were placed on Dr Hill’s registration.

Dr Hill was asked to undergo a GMC performance assessment and this took place in March 2011. The resulting report suggested that Dr Hill’s fitness to practise may be impaired and the GMC offered undertakings to Dr Hill which she then refused to accept.

A full MPTS Fitness to practice Panel hearing then took place and over various weeks, lasted from August 2012 until June 2013.

Whilst this process was ongoing, Dr Hill applied to become a Specialist Registrar and this application evidenced that Dr Hill was highly competent and skilled in this area of medicine.

In addition, Dr Hill underwent a SMART assessment in order to asses her capabilities to work as a Consultant paediatrician. Again, there was much positive feedback about Dr Hill which became clear during this assessment.

In June 2013 the Fitness to Practise Panel found that Dr Hill’s fitness to practise was not impaired and the conditions that had been placed on her registration by the Interim Orders Tribunal and which had remained on her registration for over 2 and a half years were removed.

In December 2013 Dr Hill was informed that her application for Certificate of Completion of Training was refused which meant that she was unable to progress to Consultant Paediatrician.

In March 2014 Dr Hill began work at University College London Hospital and she remained there until March 2015 when she began a new job at Derriford Hospital in Plymouth.

Towards the end of March 2015 the hospital asked Dr Hill to complete an online application form, when she was already working there. One of the questions on the electronic form was:

“Have you ever been removed from the register or have conditions or undertakings been made on your registration by a fitness to practise committee or the licensing or regulatory body in the UK or in any other country?''

Dr Hill clicked the box for “no” in answer to this question.

The very next day, her former employers, University College London Hospital referred her to the GMC in relation to concerns that Dr Hill could not communicate effectively and therefore could not work safely.

On 6 May 2015 a further Interim Orders Tribunal took place and conditions were placed on Dr Hill’s registration for 15 months to enable to GMC to investigate the matter.

On 11 May 2015 Dr Hill’s employers at Derriford Hospital terminated her contract stating that they could not fulfil the terms of the conditions on Dr Hill’s registration imposed by the Interim Orders Tribunal.

On 3 June 2015 Dr Hill was asked to undergo a further GMC Performance Assessment.

On 9 June 2015 Derriford Hospital raised further concerns about Dr Hill in relation to her communications with staff, adherence to local policies and the support of junior medical staff.

On the same day, Derriford Hosptal referred Dr Hill to the GMC in relation to the answer she had provided on the online application form which they considered to be wrong. It was accepted at the High Court appeal hearing, however, that Derriford Hospital had not been aware that the restrictions on Dr Hill’s registration had been removed by the time she completed the application form.

Dr Hill agreed to undergo a second GMC Performance Assessment and the report from this assessment was made available to the GMC in December 2015.

As a result of concerns raised within this report, the GMC sent Dr Hill a “Rule 7 letter” following which a referral was made to another MPTS Fitness to Practise Panel hearing on 1 April 2016 to consider allegations that he fitness to practise was impaired because of her poor performance and dishonesty in relation to the online application form.

Dr Hill started work at Newham University Hospital in March 2016 whilst still subject to the conditions imposed by the Interim orders Tribunal.

On 14 June 2016 the NHS changed its policies in terms of online application forms and indicated that where the answer to the question “Have you ever been removed from the register or have conditions or undertakings been made on your registration by a fitness to practise committee or the licensing or regulatory body in the UK or in any other country?'' was yes, a further drop down menu would appear asking the application to provide details but stating that if the applicant had appealed or been exonerated there was no need to provide such details.

On 20 July 2016 the interim conditions on Dr Hill’s registration were about to expire and so she consented to their extension by the High Court, on application by the GMC.

On 12 December 2016 Dr Hill’s second Fitness to Practise Panel hearing began.

On 13 April 2017 Counsel for Dr Hill made submissions of no case to answer. This was unsuccessful despite the fact that various allegations had been withdrawn and the hearing continued.

In the middle of August 2017, the interim conditions on Dr Hill’s registration were extended again as her MPTS Fitness to Practise Panel hearing had not concluded.

On 1 September 2017 the MPTS Fitness to Practise Panel handed down its determination on the facts of the case and they determined that Dr Hill’s conduct in relation to the online application form had been dishonest.

In relation to the allegations concerning Dr Hill’s performance, deficient professional performance was found proved by the Panel hearing the case as they preferred the evidence of the Performance Assessors to that of Dr Hill.

On 25 September 2015 Dr Hill’s fitness to practise was found to be impaired.

The Panel then decided to impose a 12 months suspension and determined that this was to be made immediate. Dr Hill’s registration was therefore suspended immediately, after a whopping 62 day hearing, which meant that the ‘time served’ with her registration suspended between the Fitness to Practise Panel’s determination on sanction to the point where her appeal was heard did not count towards the 12 month suspension period.

Dr Hill did indeed appeal to the High Court.

On 28 March 2018 Counsel for Dr Hill succeeded in persuading the High Court that the Fitness to Practise Panel had been wrong to impose an immediate suspension. As a result, Dr Hill agreed to undertakings which mirrored the conditions previously imposed by the Interim Orders Tribunal.

On 25 May 2018 Mr Justice Kerr handed down his determination.

It was held that the MPTS Fitness to Practise Panel had been entitled to interpret the question asked on the online application form literally and to form a view as to whether or not Dr Hill had answered dishonestly when she ticked the “no” box.

Mr Justice Kerr did accept that the question on the online application form was poorly phrased, ill-judged and ‘covered matters that should not have been asked’.

However, he formed the view that it is less serious for a doctor to answer ‘no’ to this question in a case where the conditions on her registration had lapsed than if the conditions were current but that this goes to mitigation and the seriousness of the dishonesty which the MPTS Fitness to Practise Panel had clearly taken into account.

Mr Justice Kerr in dismissing the appeal in relation to the performance allegations stated “But the tribunal indisputably had the benefit of long familiarity over weeks and months with the parties, the documents, the witnesses and the arguments…I would, therefore, hesitate long and require considerable persuasion before being satisfied that the tribunal's assessment, reasoning and decision on the performance issues was wrong…I can find no unfairness in the tribunal's rejection of those arguments. They were points to be weighed in the scales and, in my judgment, they were properly weighed.”

In relation to impairment and sanction Mr Justice Kerr stated that the Panel were entitled to find impairment in the light of the facts found proved against Dr Hill and that as dishonesty of any kind is serious, a sanction would undoubtedly follow but that, as Dr Hill’s name was not erased from the medical register, the sanction of 12 months’ suspension was appropriate but he agreed that the decision to impose an immediate suspension was wrong.

So what is important about this case? At Burton Copeland we represent doctors facing proceedings brought by the GMC including GMC investigations, Interim Orders Tribunal hearings, Performance Assessments, Health Assessments and Fitness to Practise Panel hearings. We also represent and advise doctors in relation to registration appeals, restoration hearings and High Court appeals.

Very often we find that GMC investigations/hearings take a very long time and often doctors have interim orders of conditions or worse, a suspension, on their registration which means that whilst the GMC investigates or whilst a Fitness to Practise Panel hearing is ongoing, no matter how long it takes, they are only able to practise with conditions or not at all.

Sometimes if the GMC investigation/hearing takes longer than the duration of the interim order, doctors are almost ‘forced’ to consent to an extension of the interim order at the High Court because the only other option would be to ‘challenge’ the interim order in the High Court and risk having costs orders made against them should the GMC’s application to extend the interim order be successful.

Dr Hill’s case is extremely important as Mr Justice Kerr, when delivering his judgment, sent a very clear message to the GMC in relation to the length of it’s hearings. He stated:

“I very much hope that the GMC and the MPTS will find a way in future to limit the length of tribunal hearings such as this one, which lasted 62 days. The importance of these issues to doctors whose careers may be at stake is very high, but so is the need for proportionality in conducting a process that consumes substantial public resources.

For example, in the present case, the parties might each have been invited to select five test issues rather than litigating more than 50, as they did. I should emphasise that, by making that observation, I am not in any way seeking to criticise the GMC, the MPTS or the representatives of the doctors, including this one, who regularly do their best in difficult circumstances to get these cases heard.

I am not in a position to express a view on whether the rules, as currently drafted, permit the sort of case management and application of proportionality in support of an overriding objective that is exercised in cases where the Civil Procedure Rules apply. I do hope, however, that thought will be given to ways of containing contested cases, such as this, within acceptable limits.”

It remains to be seen whether this determination will have any impact on the GMC and it’s processed and procedures. However, our view is that this is a move in the right direction for doctors under investigation.

If you are a doctor facing an investigation by the GMC, other fitness to practise issues or any of the issues raised in this article and you require legal advice, please contact one of our specialist team today on 0161 827 9500.