The police and the criminal courts may also interview, charge and prosecute a doctor who has failed to follow the appropriate polices and codes of practice that are laid down. Our lawyers can advise doctors on clinical care matters concerning the criminal law, and we regularly advise and represent doctors where things have gone wrong at work. We can also advise doctors where they are concerned about an end of life legal matter in their workplace, with which they are unhappy.

For more information on the GMC’s consultation, visit: GMC Consultation on Assisted Suicide (External Link)

View also our End of Life Care Legal Resources and Guidance page

View also the Director of Public Prosecution’s Guidelines (External Link)

Doctors Defence Service represents and advises doctors about GMC law and medical law (and criminal law), including legal advice on the lawfulness of end of life treatments and palliative care. Call us in confidence on: 0800 10 88 739

The IOP Conditions of Practice were imposed in the following terms:

“1. You must notify the GMC promptly of any professional appointment you accept for which registration with the GMC is required and provide the contact details of your employer and PCT on whose Medical Performance List you are included.

2. You must allow the GMC to exchange information with your employer or any organisation for which you provide medical services.

3. You must inform the GMC of any formal disciplinary proceedings taken against you, from the date of this determination.

4. You must inform the GMC if you apply for medical employment outside the UK.

5. You must confine your medical practice to work at the NHS general practice where you are currently a General Practice Principal.

6. You must not undertake any locum posts.

7. You must not undertake any out-of-hours work or on-call duties for an out-of-hours or deputising service. This does not preclude you from out-of-hours care of patients in your own practice.

8. You must not carry out any private practice other than for patients who are patients of your own practice.

9. You must inform the following parties that your registration is subject to the conditions listed at (1) to (8) above. (a) Any organisation or person employing or contracting with you to undertake medical work. (b) The PCT in whose Medical Performance List you are included, or seeking inclusion (at the time of the application).”

The doctor had sought to work outside of the UK and had not informed the GMC that he was doing so. The appeal court judge, Lloyd Jones J, determined that:

“The fact that the GMC became aware of his application

at a relatively early stage was entirely fortuitous, was due to the

suspicions of Dr. U. and was not brought about in any way by Dr.

Belal.  Furthermore, it was far from a technical breach.  The purpose of

the condition was to ensure that the GMC was aware in advance of any

application for medical appointment outside the United Kingdom so that

it would be able to notify the relevant authorities in the State

concerned of the true position in relation to Dr. Belal’s registration.

Dr. Belal’s conduct undermined the safeguard which the condition was

intended to create.”

The doctor also appealed (within the same appeal) to the High Court on a number of additional appeal grounds, which concerned other additional GMC allegations and GMC findings of serious deficient performance. The appeal court judge made some modifications to the overall determinations on certain of those other matters but upheld the erasure sanction because it was deemed proportionate in light of the overall evidence against the doctor. [Read the full Law Report (External Link)]

Discussion: A doctor is obligated to adhere to all of the Conditions of Practice that a GMC panel imposes, otherwise they risk suspension or erasure. Any breach of Conditions will increase the risk of a more serious interim or final-order sanction being imposed, if the relevant GMC panel forms the view that the doctor can no longer be trusted to work to Conditions. The GMC panel will be required to look at all cases on their own facts, in forming a view as to the doctor’s willingness to comply with Conditions.

GMC panels are aware that errors do occur, in good faith, on occasions, for which a doctor should not be penalised for what is an innocent mistake. Nevertheless, where it can be shown that the doctor intentionally ignored a Conditions of Practice Order, or that the doctor was wholly irresponsible and reckless in failing to ensure that the Conditions were complied with, then there is a considerable risk that a doctor’s career will come to an end because they cannot be trusted. Probity is considered to be a central tenet of the practice of medicine and it therefore goes to the heart of any doctor’s suitability to practise, and their ability to demonstrate that they can work to the letter of the law and policy. A doctor needs to demonstrate that they are a safe practitioner, so that the public can have ongoing confidence in them. Conditions do not have to last for a doctor’s lifetime career. Conditions will be subject to review from time to time and may only continue to be imposed where on the evidence (as submitted by both the GMC and the doctor) that Conditions are necessary.

Conditions of Practice (restrictions on practice) can be imposed by an interim orders panel or a fitness to practise panel. Doctors must ensure that they at all times work to the letter of the Conditions otherwise they will be considered to be in breach. Conditions of Practice may be imposed in relation to clinical or other work, or in relation to a doctor’s private life (for example, to abstain from consuming alcohol, in health-related cases).

If you are a doctor who has breached Conditions or who wishes to interpret the scope of a condition then you might take legal advice at the earliest opportunity, so as to protect your position. Doctors Defence Service can represent doctors at GMC hearings and advise doctors on GMC Conditions of Practice Orders generally, including the interpretation of the terms of the Conditions and the scope of such an Order in the public and private clinical arenas, and in their private life.

[Article by Doctors Defence Service 18 November 2011]

For Legal Advice or Representation in relation to any GMC FTP, IOP, or GMC Appeal matter, contact us on: 0800 10 88 739

The Liverpool Care Pathway (LCP) is a particularly useful resource for clinicians involved in making a patient comfortable in their last weeks, days and hours of life, as it has come about through consultation and peer review. The pathway provides guidance to doctors about the provision of palliative care, including drug administration, hydration, and nutrition. The pathway or a variation of it has been adopted by the majority of hospitals and hospices across the UK.

An expecially controversial area of concern for patients is where doctors make a decision that a patient is not for resusictation. Before recording or making a ”Do Not Resuscitate” directive, doctors need to make sure that they follow the appropriate protocol, taking into account the patient’s wishes if they have capacity, or arriving at a best interests decision by ensuring they take all relevant evidence and opinions into account (including those of family members and multidisciplinary colleagues, where appropriate). National guidance from the Rescusitation Council is available to aid doctors in coming to a reasoned and ethical decision. A doctor’s rationale should be properly recorded in notes and the decision should be kept under review.

To view some of the relevant documents and Decision Making Tools, visit the following (external) links:

Treatment and Care Towards the End of Life: Good Practice in Decision Making (English Version) PDF  :-: (Welsh Version) PDF (General Medical Council (GMC Publications)

Liverpool Care Pathway (English Version) PDF – Example (Generic – Version 12 – 2011)

Marie Curie Guidance on Liverpool Care Pathway (Marie Curie)

Guidance on “Do Not Resuscitate” Directives (Resuscitation Council Guidance)

Glossary of Terms Used in End of Life Care (GMC Publication)

Resuscitation Guidelines – How to Resuscitate (Resuscitation Council Guidance)

Palliative care decisions can on occasions be controversial and misunderstood by colleagues, patients and families. Newspapers, too, will critically focus on whether doctors get things right and whether families of the terminally ill are properly involved in the end of life care (see for example a Telegraph Article on the Liverpool Care Pathway). It is especially important for a doctor to take into account the opinions of others, when making best-interest decisions for those patients who lack capacity, and to keep good records of what is decided and how a decision is reached. On occasions, the courts may become involved with supervising and adjudicating on a doctor’s decision that relates to care and treatment of an adult or child, where there is disagreement or the court’s opinion is sought.

The legal framework and ‘best practice’ standards change from time to time and it is important that doctors keep up to date on these topics.

Where doctors make a significant error of judgment relating to end of life care, their motives will generally be examined at a GMC fitness to practise hearing, held in public. Past GMC end of life cases include: GMC v Dr Iain Kerr who was given a six month Order of Suspension from the Register for his role in prescribing a drug to an elderly patient that was not clinically justfied and which was likely to be used by the patient to end her own life.

Doctors Defence Service provides Legal Advice and Guidance to Doctors who wish to clarify the legal basis for a decision they have made or intend to make. At Doctors Defence Service, we have lawyers who are trained in medical law, and lawyers who are clinically qualified – who have practised in the NHS and in private practice. Our lawyers can help doctors to better understand the current legal framework on end of life decisions and the minimum standards expected of a doctor. Our lawyers can also represent doctors in criminal and regulatory proceedings related to end of life care. Call us on: 0800 10 88 739 for more details of our legal advice service.

Legal Advice from a UK Medical Law Lawyer

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Professional Negligence

The Supreme Court has determined that expert witnesses, in most legal cases, should not be immune from being sued by the party who had instructed them to act. The decision has far-reaching implications for doctors who act as expert witnesses in court and tribunal cases. The Supreme Court decision is an extension of the trend in law to remove immunity from suit for those professionals who act in legal proceedings. The decision affects most experts who give expert opinion in anticipation of legal proceedings, as well as those experts who testify at hearings. Doctors who act as expert witnesses are likely to be caught by this change in the law and must therefore ensure that they carefully assess and address the issues on which that have been asked to give their opinion.

In Paul Wynne Jones v Sue Kaney [2011] UKSC 13 the Supreme Court held (in March 2011) that where a doctor makes an error (by act or omission) that causes damage to the party instructing them, in turn causing loss or damage, the party instructing the expert may be able to recover compensation from the expert.

The Supreme Court held that there is no conflict between the duty to the courts and the duty to the party calling the expert. An expert will still be expected to give their objective opinion but if they arrive at their opinion through error, therefore negating parts of their opinion or nullifying the whole of their opinion, they may be sued for any losses sustained by the party calling them. An instructing party is therfore owed a duty of care and any breach that causes loss or damage may be actionable. Public policy will no longer afford to experts protection from suit.

Doctors who act as experts must now ensure that they act diligently when assessing a case and giving their opinion. Doctors who act as a clinical or other expert should also ensure that they have sufficient indemnity insurance for the work that they undertake and that it covers claims by those instructing them. Standard medical defence organisation cover might not cover expert witness work and so doctors should check their policies as soon as is practicable and obtain additional cover where it is necessary.

[Read the Full Case Report]

(Doctors Defence Service July 2011)

Doctors Defence Service represents and advises doctors who act as expert witnesses. To discuss any expert witness issue with a lawyer, or to discuss a professional negligence defence matter, without obligation, call us on 0800 10 88 739

Professional Negligence Defence Lawyers

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If a doctor is present at a hearing, the time may be considered to run from that date, especially if a doctor has signed to confirm that they have received the determination. Alternatively, the time will run from the date on which the doctor receives a written copy of the decision by post. Even where an Appeal Notice is lodged, if the Appellant has not lodged the requisite fee or applied for an exemption at the same, there is a risk that the appeal Notice will not have been lodged appropriately and be struck out.

In the case of Harrison v General Medical Council [2011] EWHC 1741, Blake J held that the High Court had no power to extend the 28 days period in which an appeal had to be lodged. Consequently, any appeal lodged outside of the 28 days period, or which had been lodged in a procedurally defective way within that time, could not be considered. The time limit for lodging an appeal notice applies to all sanctions imposed by a FTP panel, where a doctor wishes to challenge the determination. [Full Case Report not available at this time.]

Where a doctor has been struck off the register, a doctor will not be able to apply for Restoration for a minimum of five years. Therefore, the strict time-limits must be complied with if a doctor is not to suffer adverse consequences by missing the appeal deadline.

Doctors Defence Service advises doctors on the merits of appealing an adverse GMC FTP panel decision. Our lawyers regularly represent doctors at appeal hearings in the High Court. Some of our lawyers have also appeared in the Court of Appeal, in fitness to practise appeals. To discuss the possibility of bringing an appeal, with an experienced lawyer, call us on: 0800 10 88 739

Mr Justice Stadlen opined, “It is axiomatic that the ability to cross-examine in such circumstances is capable of being a very significant advantage. It enables the accuser to be probed on matters going to credit and his motives to be explored. It is no less axiomatic that in resolving direct conflicts of evidence as to whether misconduct occurred the impression made on the tribunal of fact by the protagonists on either side and by their demeanour when giving oral testimony is often capable of assuming great and sometimes critical importance” [at paragraph 44 of the judgment]. [Read: the full law report.]

In essence, the case reinforces the need for Fitness to Practise Panels (FTPP) to make a proper and detailed assessment of the ’fairness’ of proceedings when determining whether to admit hearsay evidence without calling a witness.

The above case very much turned on its own facts. There was a concern that the complainant, who lived in Kenya, would face reprisals if it became known that he had participated in certain homosexual acts.

The court judgment also referred, obiter, to the issue of whether hearsay evidence could be fairly admitted in the absence of principle witness, even where there was no threat to a complainant. It appeared to the court that fairness required all principle witnesses to give evidence in cases where there were serious allegations that could have a devastating impact on a doctor’s career, so long as the witness could be located or that reasonable efforts had been made to enable a witness to give evidence in person or by video-link, and that there were no counter-prevailing justifications that outweighed the witness being called to give evidence.

It will be observed that the concept of ‘Fairness’ will necessarily be fact sensitive. The ‘Bonhoeffer’ judgment is helpful in its analysis of the legal concepts and arguments that need to be considered by regulatory panels tasked to consider and determine whether to admit hearsay evidence. There will no doubt be future cases where a panel determines that in all of the circumstances hearsay should be admitted, but in such cases the panels will need to assess the competing arguments and weigh up whether a regulated professional can have a fair trial if the hearsay in question were to be admitted, giving cogent reasons for its decision. Lawyers who represent doctors need to be mindful of the wider implications of this case in GMC regulatory proceedings.

[Doctors Defence Service 24 June 2011]

Doctors Defence Service barristers represent doctors and other professionals in fitness to practise hearings and can advise on the issues concenring the admissibility of evidence and fair trial principles. To discuss your case with a lawyer, without obligation, call us on 0800 10 88 739

There has been a history of villification of doctors who have under or over reported aspects relating to child abuse and child welfare decision making processes, which is why the issue has been such an important topic for doctors who act as experts.

Read the Full Case Report

[Article by Doctors Defence Service 20 May 2011]

For advice on the duties of a Clinical Expert, call Doctors defence Service on: 0800 10 88 739

In practice, a doctor who is complained about will generally not be able to take a civil action in defamation against someone who has complained against them to a regulatory body such as the General Medical Council. Public policy recognises the importance of the complaints process. Complainants must not be fearful about making a complaint against a doctor. While the case concerned a complaint made by a fellow doctor, the immunity will cover any complainant, including patients and members of the public. There is also a likelihood that the public policy arguments may have broader impact on other tortious civil claims.

A doctor who is complained about will still have a right of reply to the GMC, by which they can challenge the complaint in the usual way. Complaints that are ill-founded should at an early stage be sifted out by the Case Examiners, where a doctor makes a robust reply that is properly evidenced.

[Where a libel claim is brought, the claim must be lodged with the court within 12 months of 'publication'.]

(Doctors Defence Service 12 April 2011)

Doctors Defence Service lawyers can assist doctors in responding to complaints. Call us on 0800 10 88 739 for more details.

Every so often an issue may arise as to the interpretaion of GMC rules and regulations, and a doctor might appeal or seek judicial review of a decision of a GMC panel. Such cases may occasionally be of assistance to other doctors that are being investigated or disciplined by the the GMC. Other regulatory body and tribunal case law may also be applicable to the processes of the GMC. In these pages, Doctors Defence Service summarises and digests GMC and other cases that may be of relevance or of interest to doctors. Some case law is relevant to appeals and judicial reviews of GMC panel decisions, some concerns fitness to practise hearings, and some is related to doctors responsibilities.

The GMC must apply case law and statutory law in a case, as applicable to the given circumstances. Doctors who have some familiarity with the law will have a much greater understanding of how and when to make submissions, and when to call different types of evidence. Doctors Defence Service lawyers keep up to date on the current legal position and can advise doctors on the steps that they should take when seeking to maximise their prospects of success at a hearing. Doctors who take legal advice or whom instruct an experienced lawyer will stand a better chance than those who do not do their legal homework. The summaries that appear here can only give a flavour of the approaches that might be taken in a hearing. They are not a substitute for taking legal advice. Case law may change rapidly and so the reader must beware that these pages may be out of date by the time they are published on the Doctors Defence Service website.

A doctor who is reported to the GMC will often (and understandably) have little knowledge about the GMC’s fitness to practise processes. The GMC’s investigatory process usually starts with a complaint about a doctor. The case then progresses through an investigatory stage. Some cases are closed at the GMC’s investigatory stage. Some cases progress  to a live hearing stage, where witnesses are called and the doctor gives evidence before a fitness to practise panel. A fitness to practise panel has a number of disposal options available to it. The options include: erasure of the doctor’s name from the register, suspension for a period of months, or long-term restrictions on practice. A number of doctors appeal the decisions of the GMC FTP/MPTS panels each year. Appeals may concern any determination that the panel has made, or the overall (un)fairness of the hearing or fitness to practise process.

For case law and information on appeals from the GMC (and MPTS) decisions see our page on: Appeals.  Otherwise click on a subject link below to go to the relevant discussion page about the GMC fitness to practise process.

The above list contains links to issues concerning relevant GMC and MPTS case law.  See also our general GMC / MPTS Legal Representation pages.

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Doctors Defence Service