by Grace Keegan, Senior Associate, Kennedys
Being the subject of a Medical Council complaint can be stressful.The feelings of stress can often be amplified by a lack of understanding of the process and a feeling of isolation.
Grace Keegan, Senior Associate at Kennedys Law, one of Challenge Indemnity’s expert legal advisors, provides a practical insight as to what to expect when you are involved in a Medical Council Complaint or Fitness to Practise Inquiry.
Challenge Indemnity and its panel of expert legal advisors are here to assist with every stage of the process.
Who can complain?
The overwhelming majority of complaints to the Medical Council in respect of clinicians are made by members of the public.Anybody can, however, make a complaint.This includes patients or their family members, employers, other healthcare professionals, members of the public, and the Medical Council itself.
What to do first?
The first piece of correspondence that you will receive from the Medical Council is confirmation that a complaint has been made.A copy of the complaint will be provided, and you will be asked to provide your comments.
It is imperative that you notify Challenge Indemnity immediately upon receipt of the complaint by telephoning the dedicated 24-hour Challenge helpline or emailing the Challenge team who will guide, assist and support you with the entire process.
Depending on the nature and gravity of the complaint, Challenge Indemnity’s legal team may appoint its panel solicitors to assist you with the complaint.
Your Challenge team will likely ask you to provide a factual written response to the complaint at this stage, which will inform your advisors as to how best to proceed.
You are under no obligation to provide any formal response to the complaint at this stage.
Investigation
The Medical Council appoints a case officer to manage each complaint, who reviews each complaint and determines an investigation plan.This may include identifying
- documentation required (eg medical records, personnel records etc);
- persons to be interviewed;
- expert reports to be commissioned.
This case plan is then considered by the Preliminary Proceedings Committee (PPC) at its next monthly meeting.The PPC usually approves the case plan, and can also direct that the Case Officer carries out any other investigations that it deems appropriate.
You will be provided with any information obtained by the Case Officer investigating the complaint.
Structuring a response to a complaint
Your Challenge team will advise you in relation to whether a response is required in relation to the complaint and will assist you with drafting the response.
Your response should include your professional background at the outset, setting out a brief summary of your experience, your current employment position and any areas of special interest.A curriculum vitae can be attached as an appendix if required.This will provide the reader with context in respect of your experience.
The response should set out a factual chronology of treatment provided, referencing the medical records as appropriate.Comments in relation to particular treatment provided, work practices or circumstances should be based on fact.
Clinicians often worry that they have no particular recollection of the events in question.It is perfectly adequate to make this clear in your response, and to refer to the contemporaneous medical records and your standard usual practice.
If there is a particular reason as to why you have a clear recollection of the events in question, then also make this clear.For example: ‘I remember this case due to its complexity, as it was subsequently discussed at a multi-disciplinary team meeting’.This provides additional credibility to your evidence and version of events.
If you would like to offer an apology in your response, this can be included.An apology is not an admission of liability and, in the right context, can demonstrate insight and empathy.
Your response is exactly that, yours.You must be entirely happy with the contents of your response, and be willing to stand over its content.The Challenge team will assist you in preparing your response but you must read it carefully and ensure that it accurately reflects your version of events, before it is sent to the Medical Council.
A copy will be sent to the Medical Council, the complainant for their comments and also any expert instructed in the matter.Further, if the complaint is referred to a Fitness to Practise Committee (FTP Committee) Inquiry, your response will also be available to the Committee members (see below).It is therefore imperative that you are entirely happy with the substance and form of your response.
When to provide a response?
Depending on the nature of the complaint, the Challenge team may recommend that certain information is obtained by the Case Officer, prior to providing a response.There will often be factual witness statements and medical records or investigation files, which will be of assistance when drafting a response.
However, if an expert is to be instructed, it is helpful for the expert to have your comments prior to preparing his or her report.This provides a context for the expert upon which to base his or her views, rather than simply the medical records.This is particularly important where a UK based expert is instructed by the Medical Council.UK experts may be unfamiliar with the practicalities of working in the Irish healthcare system and your statement can be very useful to provide context to the expert.
You are however, under no legal and/or professional obligation to provide a written response to the complaint unless the PPC orders that you do so.Failure to comply with an order to provide a written response to the PPC can result in a further referral to the Medical Council.
Preliminary Proceedings Committee (PPC)
Once their investigation is complete the Case Officer prepares a Case Report, detailing all of the relevant information obtained from their investigation.Your Challenge team will be provided with a copy of the Case Report and all accompanying documentation, which they will share with you.You will then have 21 days to consider the material and provide any further response.The Challenge team will advise you on whether any further response is required and will assist you with drafting it.The matter will then be considered by the PPC at its next meeting.
Interestingly, having considered the information supplied by the Case Officer, the PPC does not make a decision on the case.It simply provides an opinion as to whether any further action should be taken about the complaint.
If it considers that there is a prima facie case to warrant further investigation, it refers the complaint to the FTP Committee.
Alternatively, the PPC may form an opinion that:
- There is insufficient cause to warrant further action, and the complaint file should be closed; or
- The complaint should be referred to another body/authority, or to a professional competency scheme; or
- The complaint should be resolved by mediation or other informal means (in practice this option is rarely recommended).
Either way, you will be notified of the PPC’s opinion.
At its next meeting, the Medical Council will be notified of the PPC’s opinion, and the Council then makes a final decision based on the PPC’s opinion.
How long?
The length of time taken for the PPC and Case Officer to investigate a complaint can vary hugely, depending on the nature and complexity of the complaint.However, even with a straightforward complaint, it is unlikely to be concluded in less than 5 months.A more serious or complex complaint can be at the PPC / investigation stage for up to 12 months.
Impact on Clinicians
It is important to remember that the majority of complaints are closed after investigation.In 2017, 82% of the complaints investigated by the PPC were found to warrant no further action.
Notwithstanding this, the stress on clinicians who find themselves involved with a complaint, cannot be underestimated.This is particularly apparent, where the investigation process is drawn out over a number of months.
As stated at the beginning of the article, being involved in a Medical Council complaint can feel very isolating.However, the experienced Challenge team will be on hand to support you and advise you at every stage.Where appropriate, it may also be helpful to seek support from your GP, family and friends.
Fitness to Practise (FTP) Inquiry
Having investigated the complaint, if the PPC considers that there is a case to warrant further action, it will refer the complaint against you to the FTP Committee for an Inquiry.
Public or private?
The FTP Committee Hearing is an adversarial hearing, which is ordinarily heard in public.In certain cases, the Challenge legal team can apply for the hearing to be heard in private.Recent years have seen a welcome fall in the number of inquiries heard in public from 45% in 2015 to 28% in 2017.
It is, however, entirely within the discretion of the FTP Committee to allow the hearing to be heard in private.Ordinarily, such applications are granted where the allegations against your ability to practise relate to your health, or where you obtain medical evidence which demonstrates that the stress of a public hearing would adversely impact on your health.
Alternatively, the Committee may order that your identity (and/or the identity of the complainant) be anonymised.
If the hearing is held in public, there can be considerable media interest.Understandably, this is a cause of great anxiety for practitioners.The Challenge team is very experienced in media management in these circumstances, and will support and advise you accordingly.
Notice of Inquiry
The Medical Council will instruct solicitors to carry out further investigations based on the file prepared by the PPC.On completion of their investigations, a Notice of Inquiry will be provided to you and the Challenge team.This sets out the allegations of professional misconduct[1], poor professional performance[2] and/or a relevant medical disability[3] against you.
The Notice of Inquiry will also list the factual and expert evidence upon which the allegations are based - for example: any relevant medical records, expert reports and witness statements from factual witnesses.This evidence will be contained within the Inquiry Booklet which will be served on you, and the contents of which will be agreed between the Challenge team and the legal team for the Medical Council.
In accordance with the principles of natural justice, the solicitors instructed by the Medical Council must serve ALL evidence gathered during their investigation.It is important to note that you are also entitled to see the evidence gathered by the Medical Council, which is not being relied upon at hearing, including draft witness statements, attendance notes of telephone calls with witnesses, handwritten accounts of meetings with witnesses etc.This can often be useful in assessing the credibility of witnesses.
Investigations carried out by your legal team
In the meantime, the Challenge team will carry out its own investigation of the allegations against you.Expert evidence will often be obtained, and statements may be sought from factual witnesses and/or character witnesses as identified by you.A barrister will also be instructed to represent you at the hearing.
Inquiry
Inquiries are usually held in the Medical Council’s premises at Kingram Place, Dublin.Three members of the FTP Committee hear the Inquiry, one of whom must be a medical member.There is, however, no requirement that he/she be of the same speciality as you.A legal assessor provides legal advice as required to the FTP Committee, and a stenographer takes an accurate record of the Inquiry.
At the outset the barrister / advocate, instructed on behalf of the CEO of the Medical Council, will set out the case against you.The allegations must be proven beyond reasonable doubt, which is a very high burden to meet.In the UK, fitness to practise allegations must only be proven on the balance of probabilities.
The CEO will call expert and factual witnesses to support the allegations.The complainant will often be called as a factual witness.Your barrister will have the opportunity to cross examine each witness, and the FTP Committee members may also ask questions of each witness.
Once the CEO has presented its case, you are entitled to call any expert, factual and/or character evidence in your defence.You may wish to give evidence under oath, although you are under no obligation to do so.
Decision and Fitness to Practise Report
Having heard the entirety of the evidence, the FTP Committee will retire to consider its decision.This can take anywhere from a few hours to several days, depending on the volume and complexities of the allegations.
When the FTP Committee returns with its decision, the Chairman must state whether each allegation has been factually proven, and provide reasons for its decision.
The FTP Committee then prepares a report for the Medical Council, with its recommendations as to what sanction should be imposed, in light of their findings.
Medical Council – Sanction Hearing
The FTP Report will be considered by the Medical Council at the next Council meeting (usually within 4-8 weeks of the conclusion of the Inquiry).If the FTP Committee failed to make any findings against you, the Medical Council will dismiss the complaint.
If however there are any findings of professional misconduct or poor professional performance made against you, the Medical Council will consider the FTP report and the recommendations on sanction.
At this meeting, the Challenge team will make submissions as to the appropriate sanction that should be imposed, and character references/testimonials can be circulated to the Council in support of these submissions.It is important that you attend this meeting with your legal team, as the Council members may wish to ask you questions.
Whether you are found guilty of professional misconduct or poor professional performance, the range of sanctions available range from:
- Advice, admonishment or censure in writing (the least severe)
- A censure in writing and fine up to €5,000
- Conditions attached to registration (these will be published on your registration)
- Transfer of your registration to another division of the register
- Suspension from the register for a specified period
- Cancellation from the register
- Prohibition from applying for a specified period for the restoration of your registration
Appeal
You will be notified of the Council’s decision on sanction.Where the Council decides to impose an advice, admonishment or written censure, you have no right of appeal.For all other sanctions, you have a period of 21 days to appeal that sanction to the High Court.
High Court – Ratification
If you do not appeal the sanction, following the expiry of the 21 days, the Medical Council must apply to the High Court for ratification of its decision.This is important, as the sanction does not come into effect until ratified by the Court.
Of equal importance is to note that this ratification hearing takes place in open court.Consequently, if your FTP Inquiry was held in private, there is a risk that details of the case may be reported in the media at the sanction stage.There is no requirement for you to attend this High Court hearing.
Recent trends
Recent years have seen Regulatory Bodies impose more serious sanctions on professionals in cases of dishonesty.This is more in keeping with practice in the UK, where dishonesty, particularly in the medical profession, often results in removal from the register.
Further, your conduct outside of work is also having more of an impact on FTP Inquiries in recent years.You are reminded to ensure that all social media usage is appropriate to the standard of conduct expected of your profession.
Conclusion
Being subjected to a complaint to the Medical Council is an anxious and fearful place to find yourself as a practitioner.It is important that you seek immediate assistance from the Challenge team who will advise and support you through every step of the process.
It is also important to remember that the Medical Council and its advisors must prove any allegations against you beyond all reasonable doubt.This is a high threshold to meet and is reflected in the statistics.Between 2015 and 2017 the number of FTP Inquiries that made no findings against practitioners doubled from 19% to 38%, which is a very welcome development.
| 3 KEY THINGS TO REMEMBER IF YOU RECEIVE A MEDICAL COUNCIL COMPLAINT
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[1]Conduct that experienced, competent and reputable doctors consider disgraceful or dishonourable; and/or conduct that falls seriously short of the standards of conduct expected of doctors.
[2]A failure to meet the standards of competence (whether in knowledge and skill and/or the application of knowledge and skill) that can be reasonably expected of doctors practising that speciality of medicine
[3]A physical or mental disability (including addiction to alcohol or drugs) that may impair the doctor's ability to practise medicine or a particular aspect of medicine.
Grace is a Senior Associate in the Healthcare Team at Kennedys Law. Grace is dual qualified in Ireland (2008) and in England & Wales (2010).
Grace specialises in medical defence law, and has defended a wide variety of clinical malpractice claims in the Superior Courts.
She has a special interest in the area of professional regulation, and has extensive experience in defending clinicians before the Irish Medical Council, the General Medical Council and the Nursing and Midwifery Council in the UK.
Grace has advised extensively on the Medical Practitioner’s Act 2007, ethical guidance for practitioners, and on issues relating to the principles of natural justice and fair procedures in the context of regulatory proceedings.