When you receive correspondence from your regulatory body to tell you that a complaint has been received which will formally be investigated as part of its fitness to practise process, the temptation can often be to panic which can lead to rash actions and decisions. It is important that you keep calm and do not panic.
There are a number of important things to do and consider when facing a fitness to practise investigation.
1. Seek legal advice at the earliest possible opportunity
It is a well-established and proven fact that health and care professionals with expert legal representation fare much better than those who chose to go it alone.
A GMC study found that doctors who lacked legal representation tended to receive more serious outcomes.
Why is there real value in seeking expert legal advice at the earliest opportunity when facing a fitness to practise investigation? We know from years of experience representing healthcare professionals that early engagement will help to thoroughly assess the individual circumstances of your case which will allow us to help you set the right strategy and approach that will improve the prospect of a more positive outcome.
2. Full (but considered) engagement is important
Fully engaging with a fitness to practise investigation is also an important consideration. It is clear from many cases before tribunals and subsequent appeals before higher courts that health and care staff who engage with the process do generally face less serious sanctions.
The same GMC study referred to above concluded that the outcome of MPTS decisions was consistently linked to doctors’ engagement with hearings rather than their personal characteristics.
A note of caution though. Fitness to practise investigations and procedures are drawn out and complex. Whilst the principle of engagement with the process is important, it also needs to be carefully considered because this information can be considered and disclosed as part of the fitness to practise investigation.
3. Carefully consider what to share with your employer
Depending on your circumstances, a fitness to practise investigations are likely to include engagement with your employer, particularly if you work in the NHS.
It might be that your employer wants to speak to you about the complaint and investigation. However, we urge caution and recommend that you do not speak to them before seeking legal advice. Information and explanations you share with them is disclosable to your regulatory body and therefore might form part of their investigation and conclusions.
4. Resist a hasty response
As we said at the beginning, when you receive correspondence from your regulatory body to tell you that a complaint has been received which will formally be investigated as part of its fitness to practise process, the temptation can often be to panic which can lead to rash actions and decisions.
Take time to fully consider the correspondence however. In the vast majority of cases, there is no need to rush. Remember whatever correspondence takes place between you and your regulatory body would be considered as part of the fitness to practise investigation.
Put personal feelings aside and try to objectively consider the circumstances that lead to the complaint. We again can advise you on when and how to respond to correspondence from your regulatory body.
5. Clinical notes and records
Similar to the above, avoid the temptation to amend, clarify or “tidy up” clinical notes or records. This will give the wrong appearance and impression. If there are issues arising from clinical notes and records, these could be addressed during the various stages of the fitness to practise investigation and any learning or development needs identified can be addressed.
6. Insight and remediation
As we mentioned previously, fitness to practise investigations and procedures are drawn out, often lasting months or years before reaching a conclusion. The key to a positive outcome is an early assessment of the circumstances that lead to the complaint (reflection) and to identify what might have gone wrong (insight). From this will flow corrective action (remediation). However, remediation can, at times, take a long time to fully achieve. This again points to the need and benefit of seeking expert legal advice at the earliest opportunity.
7. Walking away is not always an option
Voluntary erasure can be considered an alternative disposal but this is not always possible. Where there might be a risk that public confidence in either health and care professionals or the reputation of the regulatory body is at stake, voluntary erasure might not be an option.
Under the circumstances above, you might still be required to face a fitness to practise panel despite offering voluntary erasure.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.
I am a NMC Defence Barrister who has represented large number of medical professionals before their regulatory bodies in either first instance proceedings or appeals.
I can help with all matters relating to NMC Fitness to Practise referrals issues including:
- What to do if you have been referred to the NMC
- Advice on the NMC investigatory process
- Consensual Panel Determinations
- Interim Orders Hearings
- Advice, assistance and representation for hearings before the Conduct and Competence Committee
- Advice, assistance and representation for hearings before the Health Committee
- Appeals against the decisions of the NMC
- Police cautions
- DBS [Disclosure and Barring Service] issues
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