The General Medical Council [GMC] was established by the Medical Act 1858 and is entrusted with regulating the UK’s medical profession. It is also a fee-based Charity [Number 1089278].

Despite its role in investigating alleged misconduct and imposing sanctions on doctors who step out of line, the GMC is not a court. Rather, it is a quasi-judicial body, as established by GMC v BBC 1998.

The distinction is subtle, but significant in respect of which laws apply to the GMC’s actions.

It is composed of council members who are also Trustees of the Charity. As such, they are bound by their code of conduct, and must also abide by the duties and responsibilities outlined by the Charity Commission .

The General Council’s primary objective is to protect, promote and maintain the health and safety of the public, for which purpose doctors must be registered with the General Medical Council.

Its privileges are described in Part 6 of the Act and also in the case British Medical Association v General Medical Council.

Following the Shipman Inquiry, the GMC have developed a licensing system  dependent on revalidation.

The Medical Act

The Medical Act is accompanied by a set of Fitness to Practise Rules 2004 and Guidance to the Fitness to Practise rules. These are the rules the GMC must follow when investigating doctors.

The General Medical Council also has a regularly updated Investigation Manual that can be downloaded here.

The GMC is empowered to commence investigations with or without complaints. Memoranda of Understanding are in place with various organisations , enabling the GMC to obtain information about doctors from various sources.

Misconduct

The GMC assesses “misconduct” based’ on Section 35c of the Medical Act 1983, the GMC’s own Good Medical Practise and related guidance in order to determine whether the conduct in question is capable of breaching any of the GMC’s guidance.

Documents relating to the Guidance For Decision Makers are worth downloading  as they provide a self explanatory guide to the process.

The Indicative Sanctions document is actually a description of the potential sanctions and the reasons for them as issued by the GMC. This is a very useful document summarising the case law and the reasons for sanctions in each case. The Department of Health’s review of medical regulation, Good Doctors, Safer Patients is also helpful  .

Recent cases analysing “misconduct” are R v General Medical Council Ex Parte Remedy UK and R v General Medical Council Ex Parte Pal (*see declaration of interest below). These cases demonstrate the varying “test” used by the Registrar, the GMC’s initial screening section.

Historically, “infamous conduct in a professional respect” was defined by the case Allinson v GMC 1894. The evolution of infamous conduct to Serious Professional Misconduct was summarised by the Shipman Inquiry.

In 2004, Serious Professional Conduct became “Misconduct”, allowing the GMC more flexibility when dealing with complaints.

Sick doctors

The General Medical Council also oversees the health of doctors, ensuring they do not pose a risk to the public through physical or mental illness.

In many cases, doctors with health problems are required to notify the GMC, and may face a hearing (often held in private) into their fitness to practise.

Dr Liz Miller has raised concerns about the way these enquiries are conducted, and the high suicide rate amongst doctors at the GMC . She says,

“Once diagnosed with a health problem, and once referred to the GMC, regardless of whether the health problem has been dealt with and regardless of whether the doctor is fully compliant with medical advice, the GMC investigates.

“This investigation consists of scrutiny of the doctors personal medical records, reports from their employers and managers, and investigation by case Examiners, usually forensic psychiatrists who are more experienced with dealing with murderers in Broadmoor, than assessing an individuals capacity for work”.

 

Standard of proof

Until recently, the GMC worked to the Criminal Standard of proof – the need for an allegation to be proven beyond reasonable doubt. However, in 2006, the GMC started to use the Civil Standard of proof, in which it need only be shown that an allegation is more likely than not to be true.

Some of the problems of using this standard are detailed here. Both doctors and complainants criticise the GMC, expressing concern about the need for balance between their opposing interests.

Medical publication Pulse cited an 83 percent rise in complaints after the Civil Standard was adopted.

Evidence, proof, and the need to arrive at the latter via the former, has sometimes been difficult for the GMC, as was shown in R v General Medical Council Ex Parte Toth 2000. In this case, the judge ruled that, where there was a conflict of evidence, a complaint could not be discarded at the screening stage, but most proceed to investigation and hearing.

In her leading research into the GMC’s Handling of Complaints, Isobel Allen, highlighted:

“… a lack of clarity among GMC members and staff on the criteria, standards and threshold to be applied in reaching a judgment on cases at the different stages of the complaints procedures.” This may provide some insight into the media’s current curiosity about the GMC’s seemingly aberrant decision making.”

 

Vexatious complaints

Conversely, the GMC receives many vexatious complaints, and it has been criticised by Professionals Against Child Abuse for its alleged failure to deal with them effectively.

The GMC offers guidance on vexatious complaints  and the subject was also raised in R v General Medical Council Pal 2009*, where the unequal balance between the complainants’ and doctors’ rights was discussed in the context of damage to the doctor’s livelihood.

Criticisms

On the other hand, complainants have argued that the GMC’s performance is inadequate, requiring prolonged, persistent efforts to challenge incorrect decisions.

Unlike many other regulatory bodies, the General Medical Council has the power to review its own decisions under Rule 12 of the Fitness to Practise Rules, but it can be difficult to engage the rule, and, in any event it does not apply to final hearing decisions. Instead, they can be reviewed by the CHRE.

One of the GMC’s most controversial judgments was in the case of Gosport doctor Jane Barton, who escaped being struck off despite prescribing potentially hazardous drugs .

By contrast, the GMC has come under fire for allegedly discriminatory practises adversely affecting the livelihoods of ethnic minority doctors.

Whistleblowers

More controversially, the Health Select Committee recognised that doctors who raised concerns were also being investigated or sanctioned.

Cases include:

• R v General Medical Council Ex Parte Cream,
• Shamsian v General Medical Council,
• Phipps v General Medical Council,
• Vaidya v General Medical Council  and
• Pal v General Medical Council 2004*, where a High Court Judge compared the GMC to a “totalitarian regime” for casting aspersions on a doctor who raised evidence based concerns.

The GMC have stated that they have no plans to do a consultation in relation to whistleblowers.

Voluntary erasure

Doctors may be erased from the Medical Register in various ways, for various reasons, and the distinction between these erasures is often misunderstood.

For example, administrative erasure occurs when a doctor does not pay the GMC’s annual registration fee, and voluntary erasure occurs when a doctor simply no longer wishes to be on the Register.

Neither bears any relationship to the better-known erasure as a consequence of misconduct, commonly referred to as being “struck off”.

However, voluntary erasure has sometimes been controversial. In R v GMC Ex Parte Toth, Dr David Jarman sought voluntary erasure on health grounds despite facing a “Misconduct” hearing. The GMC agreed to the voluntary erasure thereby enabling the doctor to avoid the hearing.

Dr Jane Barton, despite a finding of guilt, was also allowed voluntary erasure instead of being struck off.

Concerns about premature voluntary erasure just before facing a misconduct hearing have  also been raised by the media.

The GMC is undergoing a number of changes, including the new Medical Practitioners Tribunal Service. For the latest updates, it is worth monitoring the GMC Press Office  .

*Declaration: the author has been a whistleblower involved in litigation Pal v GMC 2004 and R v General Medical Council Ex Parte Pal

GMC: related links

1. General Medical Council website
2. General Medical Council legislation
3. General Medical Council Investigation Manual.
4. Useful Documents related to the GMC – Shipman Inquiry website.
5. Regulatory Law: good resource on the GMC
6. Acting Fairly to Protect Patients: reform of the GMC Fitness to Practise Procedures
7. A View from the General Medical Council (Cyril Chantler)
8. Radcliffes Le Brasseur on Civil Standard of Proof at the GMC.
9. Medical Self Regulation, Crisis and Change (Mark Davies). This book has the best analysis on how the GMC deals with whistleblowers
10. Indicative Sanctions GMC Document
11. Section on GMC and whistleblowers in the paper Patient Safety and Whistleblowing  .
12. GMC Criticised over doctors Voluntary Erasure – Hospital Doctor
13. Regulation of the medical profession: fantasy, reality and legality
13. Referring GMC decisions to the High Court