Guidance: Drafting Charges€¦ · In accordance with Rule 15, if the matter proceeds to a Medical Practitioners Tribunal (‘MPT’) hearing, the GMC shall give notice of ‘allegation

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Guidance: Drafting Charges

Table of Contents Introduction – the legislative background .............................................................................. 2

Grammar and layout ............................................................................................................ 4

Anonymisation .................................................................................................................... 6

Structure and content – key principles .................................................................................. 8

General ........................................................................................................................... 8

Context and narrative ..................................................................................................... 10

Schedules ...................................................................................................................... 10

Appropriate charging / expert evidence ............................................................................ 12

Alternative charges ........................................................................................................ 13

Causation ...................................................................................................................... 14

Language ......................................................................................................................... 17

Specific types of cases ....................................................................................................... 18

Dishonesty .................................................................................................................... 18

Sexually motivated ......................................................................................................... 20

English Language ........................................................................................................... 23

Performance assessment ................................................................................................ 24

Health ........................................................................................................................... 22

Conviction ..................................................................................................................... 25

Caution ......................................................................................................................... 23

Absolute / Conditional discharge ...................................................................................... 26

Overseas determination .................................................................................................. 24

Failure to inform GMC..................................................................................................... 24

Last updated September 2018

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Introduction – the legislative background To ensure the efficiency and transparency of fitness to practise proceedings, you should set out the allegation against the doctor clearly and concisely.

Rule 2 of the Fitness to Practise Rules 2004 defines ‘allegation’ as ‘an allegation that the fitness to practise of a practitioner is impaired’.

A doctor’s fitness to practise may be impaired because of his:

misconduct

deficient professional performance

a conviction or caution

adverse physical or mental health

a determination by a regulatory body

not having the necessary knowledge of English.

Rule 7 requires the GMC to write to the doctor to inform him of the allegation made against him and state ‘those matters that appear to raise a question as to whether his fitness to practise is impaired’. The Rule 7 letter includes documents received in support of the allegation and invites the doctor to respond within 28 days.

Once the doctor has responded, the Registrar may refer the allegation to the Case Examiners for consideration, in accordance with Rule 8.

In accordance with Rule 15, if the matter proceeds to a Medical Practitioners Tribunal (‘MPT’) hearing, the GMC shall give notice of ‘allegation against the practitioner and the facts upon which it is based’.

This guidance applies at both Rule 7 and Rule 15 stage, as the format of the allegation should be consistent. For ease of reference, this guidance will use the collective term ‘charges’.

A Legal Adviser or Paralegal may draft charges at Rule 7 stage. At Rule 15, the Legal Adviser must draft the charges for review by Counsel and approval by management.

In summary, our charges should:

set out those alleged facts which go directly to the case for impairment

http://www.gmc-uk.org/2014_version_of_FTP_Rules.pdf_26875225.pdf_58265989.pdf


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enable the doctor to know exactly what is being alleged against him

assist the Tribunal in making structured findings of fact.

Rule 17(6) gives the Tribunal the power to amend the particulars of the allegation included with the Notice of Hearing at any time, provided they can do so without injustice. However, such amendments can result in unnecessary delays at hearings. We should seek to ensure that the allegation is particularised sufficiently, so that it is robust and will stand up to scrutiny from the Tribunal and the defence.


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Grammar and layout When drafting charges you must use the charges template.

Use Tahoma, point 12.

All text should be left aligned.

The doctor’s name and GMC Reference Number (UID) should appear in bold.

The standard ‘introductory’ paragraph should end with a colon.

The standard ‘concluding’ paragraph should end with a full stop.

Each separate head of charge should be numbered and end with a full stop.

There should be a space between each separate head of charge, each subparagraph and sub-subparagraph within a head of charge.

Subparagraphs should be indented by one tab. Sub-subparagraphs should be indented by two tabs.

The beginning of each subparagraph or sub-subparagraph should be lower case.

The final subparagraph or sub-subparagraph should end with a full stop. Others should be separated by a semi-colon.

Subparagraphs should be indicated by lower case letters and sub-subparagraphs by Roman numerals.

Where there are two heads of impairment, you should treat as subparagraphs i.e. you should indicate each head with a lower case letter and separate with a semi-colon and space.

Acronyms should follow the full text in brackets with single quotation marks e.g. General Medical Council (‘GMC’).

Dates should follow the UK format: 1 November 2014. Times should follow the 24 hour format.

Monetary values should follow this format: £25.00.

You should avoid unnecessary capitalisation. Only proper nouns (e.g. names of persons, places or organisations and titles) should be capitalised.

For numbers within the head of charge, one to ten should be written and all others should be numerals.

http://www.gmc-uk.org/NOH_charges_template__agreed_with_MPTS_.docx_58769999.docx


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Example: Dr John James Jones

GMC Reference Number: 1234567

That being registered under the Medical Act 1983 (as amended):

1. Between 10 December 2012 and 31 May 2013, you:

a. did not engage in a phased return to work programme; b. spent an excessive amount of your working time at the Hyde Clinic (‘the

Clinic’) engaging in activities unrelated to your work, including:

i. playing on a computer;

ii. reading books that were unrelated to your work.

2. On 21 May 2013 you were scheduled to cover a mother and baby clinic from 10:30 to 14:30.

3. You left the clinic at 12:30 without informing your colleagues and having seen eight of the 14 patients.

4. On 30 June 2013, you were medically examined by Dr A, who diagnosed you as suffering from a medical condition, the nature of which is set out in Schedule 1.

And that by reason of the matters set out above your fitness to practise is impaired because of your:

a. misconduct in respect of paragraphs 2 and 4;

b. adverse physical or mental health in respect of paragraph 5.


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Anonymisation Patients, and other persons mentioned in the charges, should always be anonymised. This includes lay persons, health assessors and experts, whether or not they are likely to be called as a witness.

You should not use initials but refer to Patient A, Mr B, Dr C etc. Letters should follow on regardless of the ‘category’ of person.

Where there are more than 26 persons referred to in the charges you should use Patient AA, Mr BB, Dr CC etc.

Wherever possible, you should be careful not to undermine anonymisation by including other information that may identify the individual, such as their job title or relationship to the doctor. However, in certain circumstances such information will be highly relevant to the charges and should be included.

Example:

1. On 1 January 2014 you were rude towards Patient A in that you swore at him during a consultation.

2. On 1 February 2014 you were physically aggressive towards Mr B in that you raised your fists towards him.

3. On 1 March 2014, you were medically examined by Dr C who diagnosed you as suffering from medical conditions, the nature of which is set out in Schedule 1.

Where a number of persons are mentioned within the charges, you should prepare a separate key for ease of identification. A key is an aid to assist the doctor in identifying individuals referenced in the charges in anonymised form.

A key should refer to the initials of the individual, unless the medical records contained within the Rule 7 or final hearing bundle have not been anonymised, in which case it may refer to the full name of the patient.


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Example:

Identification Key

Patient A = SB

Mr B = EJ

Doctor C = RP

The key should be included with the Rule 7 letter or the Rule 15 Notice of Allegation.

At Rule 15 stage, there is no need to send a copy of the key to MPTS. The key will be handed to the Tribunal members, if necessary, on the day of the hearing / when it becomes relevant and given an exhibit number.


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Structure and content – key principles

General

All charges should begin with the standard introductory paragraph:

‘That being registered under the Medical Act 1983 (as amended):’

In respect of each alleged incident, you should describe the key factual elements and precisely why the doctor is being criticised.

The key factual elements might include details of the doctor’s employment, but only where they are relevant to the allegation, for example, if an allegation relates to working in two places at once and fraudulently obtaining payment, you should include the two locations and employment dates.

You should ensure that you sufficiently particularise each culpable act (something which was done, but should not have been done) and culpable omission (something which was not done, but should have been done).

You should avoid the use of general descriptors. A head of charge that simply states ‘your performance of surgery was inadequate’ is not sufficiently particularised. It should also specify why the surgery was inadequate for example, ‘in that you used a scalpel that was too small for the intended purpose.’

You should ensure that multiple criticisms are not conflated in a single head of charge. The whole charge could fall away if one of the criticisms was found to be unsubstantiated. It may be more suitable to use subparagraphs to separate each act or omission.

Where possible, the particulars should be chronological. However, you may wish to group particulars under subheadings to make them shorter or easier to understand. For example, particulars could be grouped by:

practice setting / location

patient

issue

category of impairment

the different elements of misconduct.

Subheadings should be Tahoma 12 font and underlined.


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Example:

Patient A

1. On 31 June 2012 Patient A attended a consultation with you. You failed to provide good clinic care in that you did not: a. take an adequate history from Patient A in that you did not discuss

complications following a previous surgical procedure;

b. record the advice given to Patient A.

2. On 1 December 2012 you performed an operation on Patient A. You failed to provide good clinical care in that you did not address excessive tear production.

Patient B

3. On 2 September 2012 Patient B attended a consultation with you. You failed to provide good clinical care in that you did not take into account joint function or tenderness.

The concluding paragraph should identify the category of impairment which is engaged. Where there is more than one category of impairment you should summarise the matters that go to each category in the concluding paragraphs.

Example:

And that by reason of the matters set out above your fitness to practise is impaired because of your:

a. misconduct in respect of paragraphs 1, 3 and 5;

b. deficient professional performance in respect of paragraphs 2, 4, and 6.


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Context and narrative including aggravating factors

The charges should set out the facts which go directly to the question of impairment. You should not include unnecessary narrative or summarise the evidence. However, in order for the doctor to understand and respond to the charges, you may need to include some contextual information.

You may need to include further detail where the context of the alleged events is an aggravating factor.

If the events relate to a vulnerable person, the Tribunal will usually take that into account when considering the doctor’s culpability. If you wish to rely on vulnerability as an aggravating factor, you should specifically reference:

that the individual was vulnerable at the time of the alleged events

the nature of the vulnerability.

If the individual is not a patient, you may also need to address how the doctor was aware of the vulnerability.

Where the motive or intention of the doctor is central to the case and material to the gravity of the misconduct alleged, you should include sufficient information for the doctor to understand the basis of the case against them.

Example:

1. Between 1 January 2017 and 1 June 2017, you administered Risperidone to your wife Mrs A without her knowledge and consent.

2. Your conduct as set out in paragraph 1 was principally intended to control Mrs A.

3. At all material times Mrs A was vulnerable due to a mental health condition.


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Statement of Case

At Rule 15 stage, a Statement of Case may be used to set out further detail surrounding the alleged acts or omissions of the doctor but it does not form part of the allegation. It is not a public document, although it will often form the basis of the GMC’s opening at the hearing.

You are not obliged to provide a Statement of Case. You should only do so in exceptional cases where the complexity of the case requires further explanation of the background and context or the evidential basis of the charges to assist the Tribunal and the doctor.

A Statement of Case is only ever appropriate in misconduct cases or performance cases where no performance assessment has been obtained.

If you choose to provide a Statement of Case, you should send it to the defence solicitor, or direct to the doctor if he is unrepresented, with the allegation. . There is no need to send the Statement of Case to MPTS. Counsel should bring it to the Tribunal’s attention on the morning of the hearing.

Schedules

A schedule is a standalone document which, although separate to the charges, contains information relating to them.

A schedule may be used to set out any information that is confidential, for example a diagnosis in a health case.

A schedule may also be used to set out repeated incidents of the same type. For example, where the charges allege excessive prescribing and there is a need to refer to a significant number of prescriptions, you may wish to set out relevant time frame within the head of the charge but specify each prescription within a schedule. You should not include the date of each incident within the charge, instead they could state ‘on more than once occasion’. This avoids the risk of the charge failing if we cannot prove all of the separate incidents detailed within the schedule.

The schedule should be included with the Rule 7 letter or Rule 15 Notice of Allegation.

Schedules marked as confidential will not be included in or any public documents. If a schedule includes confidential information, it should be marked accordingly and the document title should reflect this.

Multiple schedules may be used but should be clearly distinguished and numbered.


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Example:


1. On 13 November 2014, you were medically examined by Dr A who diagnosed you as suffering from a medical condition, the nature of which is set out in Schedule 1;

2. On 1 January 2015, you were medically examined by Dr B who diagnosed you as suffering from a medical condition, the nature of which is set out in Schedule 2.

And that by reason of the matters set out above your fitness to practise is impaired because of your adverse physical or mental health.

Confidential schedule

Schedule 1

Bipolar Affective Disorder, Current Episode Mixed (ICD-10 F31.6)

Schedule 2

Moderate Depressive Episode (ICD-10 F32.1)


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Example:


4. Between 1 January 2013 and 1 June 2013 you issued the prescriptions set out in Schedule 1 to Patient A.

5. Your prescribing as set out in paragraph 1 was excessive.

And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.

Non-confidential schedule

Schedule 1

Date Details of Prescription

1 January 2013 Mefenamic acid 250 Mg capsules

1 February 2013 Mefenamic acid 250 Mg capsules

1 March 2013 Mefenamic acid 250 Mg capsules

1 April 2013 Mefenamic acid 250 Mg capsules

1 May 2013 Mefenamic acid 250 Mg capsules

Appropriate charging / expert evidence

It is important to ensure that the charges only include those matters which are serious enough to justify the allegation.

You should not include charges that add little to the overall complaint. You should be mindful that the Courts have criticised the inclusion of ‘unnecessary and oppressive’ charges. Misra v General Medical Council [2003] UKPC 7

Similarly, you should be mindful of ‘undercharging’ which could result in a finding of serious procedural irregularity and the matter being remitted to a fresh Tribunal. Council for the Regulation of Health Care Professionals v General Medical Council and Rajeshwar [2005] EWHC 2973 (Admin).


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In many cases, you will be asked to draft charges on the basis of an expert report. When doing so, you should ensure that you have particularised all conduct identified as ‘seriously below’ the standard expected of a reasonably competent doctor of that grade.

In some cases, such as those where deficient professional performance is alleged, it may also be appropriate to particularise those criticisms identified as ‘below’ but not ‘seriously below’. This is more likely at Rule 7 stage; when you be looking to elicit a response from the doctor and might legitimately include all criticisms identified by the expert.

At Rule 15 stage, the charges will be more refined, taking into account all evidence obtained during the investigation and application of the realistic prospect test (‘RPT’). An isolated incident of conduct found to have fallen ‘below’ the required standard is unlikely to meet the RPT and should not be particularised in the charges. In contrast, a number of related incidents, found to have fallen ‘below’, may indicate a pattern of behaviour that raises a concern that would meet the RPT.

Where an expert has been unclear as to his conclusion, for example they have stated that an action was ‘unnecessary’ rather than ‘below’ or ‘seriously below’ the standard expected, you may need to revert to the expert for clarification. It may be that the expert is simply making an observation, in which case the act or omission is unlikely to meet the threshold for particularisation.

You do not need to assert the relative seriousness of the alleged facts. The inclusion of a head of charge should indicate that the facts alleged are serious enough (either individually or cumulatively) to amount to impaired fitness to practise.

Drafting in the alternative

Where a range of possible interpretations could be drawn, it may be necessary to include alternatives. If only the most serious version is set out, the defence could claim that the doctor was not given an opportunity to answer the alternative and lesser case.

The Rule 7 process is the most appropriate juncture for alternatives to be included and put to a doctor; the GMC’s investigation is not necessarily complete at this stage and the Rule 7 letter is intended to illicit a full response from the doctor which will assist the Case Examiners making a decision at Rule 8.

For example, prior to Rule 7, a question often arises as to whether a doctor has failed to do something or they have merely failed to record doing it. In these circumstances, it would be advisable to draft in the alternative.

http://intranet/cps/rde/xbcr/SID-06DD84DC-7C555893/dev_intranet/DC4592%20CE%20Decision%20Guidance%20-%20Annex%20B%20-%20Realistic%20Prospect%20Test.pdf


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Example:

1. On 13 March 2015, you consulted with Patient A. You failed to:

a. perform an examination of Patient A’s abdomen;

b. record your examination of Patient A’s abdomen.

As noted above, the Tribunal has the discretion to amend charges provided they can do so without injustice. They may delete part of a head as not proved while finding the remainder of the head proved. However, to avoid the risk the whole charge being found not proved you should subdivide heads where appropriate.

Example:

Your actions were:

a. carried out without consent;

b. sexually motivated.

Causation

Causation is a feature that has to be established in a civil claim for negligence, but is not something we have to establish to show that a doctor’s fitness to practise is impaired.

You should not normally allege causation unless there is clear evidence to show the outcome was caused by the doctor and could and should have been anticipated.

Where potential issues of causation arise, you should seek guidance from your manager. You will require specific instructions on a case by case basis and should ordinarily obtain an expert report and, if appropriate, Counsel’s advice before proceeding with the allegation.

The issue of causation could be highly relevant to a Tribunal’s finding on impairment. If you wish to allege that the actions of the doctor caused injury, death or the loss of any real prospect of survival, you must be clear and unambiguous when drafting charges.

In R (El-Baroudy) v General Medical Council [2013] EWHC 2894 (Admin) the Court held that in absence of causation being expressly particularised, evidence on those issues


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should not have been led and the Panel should not, in any way, have based a judgment as to whether the doctors fitness to practise was impaired, or as to sanction, on any question of causation. Accordingly, the matter was remitted to a fresh Panel.


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Language

Failed to v did not

You should use the ‘failed to’ construction as it is more direct in identifying responsibility. It places a higher burden us, as it requires proof that something did not happen and that it should have happened. However, it is consistent with the principle that the charge should specify how the doctor has fallen short of expected behaviour.

‘Did not’ may be used when particularising what the doctor ‘failed to’ do.

Example:

3. You failed to maintain adequate records of the treatment provided to Patient A on 30 December 2011 in that you:

a. did not record that there had been a failed attempt to intubate Patient A;

b. did not adequately record:

i. the detail of what emergency treatment had been provided;

ii. by whom the emergency treatment had been undertaken.

You knew or ought to have known

This construction should be treated with caution. It establishes that the doctor omitted to take account of relevant facts. It should not be used as a substitute for a direct allegation of an adverse act or omission i.e. ‘you failed to’.

It should not be used in respect of an allegation of dishonesty as the Tribunal is required to ascertain the actual state of the doctor’s knowledge – see ‘dishonesty’ below.

At the material time

The phrase should not be used when it is possible to specify the time frame involved, even where allegations span a long period of time.

On one or more occasion

You should use the phrase ‘on one or more occasion’ when you cannot be certain about the number of times an event occurred. If you use ‘on more than one occasion’ there is a


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risk that the Tribunal may find a charge not proved, if they are cannot be satisfied that the event occurred on at least two occasions.

Or words to that effect

It is advisable to add a rider of ‘…or words to that effect’ when referring to spoken words. This addresses the risk that the Tribunal may find a charge not proved if they are unable to establish that the exact words were said.

Specific types of cases

Dishonesty

In Ivey v Genting Casinos UK Ltd (t/a Crockfords Club) [2017] UKSC 67, the Supreme Court confirmed an objective test for dishonesty in line with the civil case of Barlow Clowes International Ltd (In Liquidation) v Eurotrust International Ltd [2005] UKPC 37. The judgment overruled the long-established ‘two-stage’ test in R v Ghosh [1982] QB 1053.

Before there can be a finding of dishonesty, the fact-finding tribunal must ascertain the actual state of the doctor’s knowledge or belief. Our charges should clearly set out the conduct alleged to be dishonest (i.e. the acts or omissions of the doctor).

The question whether the doctor’s conduct is honest or dishonest is to be determined but the tribunal applying the objective standards of ordinary decent people. There is no additional requirement that the doctor must appreciate that what they have done is, by those standards, dishonest.


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Example:


1. On 1 September 2013 you submitted a timesheet for work undertaken at Tebworth

University Hospital (‘Tebworth’) from 27 to 31 August 2013 to Priory Healthcare.

2. You did not work at Tebworth during the period 27 to 31 August 2012.

3. The timesheet referred to in paragraph 1 contained information which:

a. was untrue;

b. you knew to be untrue.

4. Your actions as described at paragraphs 1 to 3 were dishonest.



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Example:


1. Between January 2012 and May 2012, you submitted 22 expense claims to East Yorkshire Hospitals NHS Trust in respect of journeys from:

a. Hull Royal Infirmary to Beverley Westwood Hospital;

b. Hull Royal Infirmary to Princess Royal Hospital;

c. Hull Royal Infirmary to the Westbourne Centre, on dates when:

i. your clinics had been cancelled;

ii. you had no clinics scheduled.

2. Between March 2013 and July 2013, you submitted 11 expense claims to York Hospitals NHS Trust in respect of journeys from:

a. Malton Hospital to Whitby Hospital;

b. Malton Hospital to Archways inpatient facility;

c. The York Hospital to Bridlington Hospital.

3. You did not undertake the journeys described in the expenses claims referred to in paragraphs 1 and 2.

4. In respect of those journeys you sought to obtain expenses to which you knew you were not entitled.

5. Your actions as described in paragraphs 1 to 4 were dishonest.



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In Fish v General Medical Council [2012] EWHC 1269 (Admin) Foskett J confirmed that dishonesty is an allegation that should:

not be made without good reason

be clearly particularised

be fairly and squarely put to the doctor at the hearing.

He commented:

‘At the end of the day, no-one should be found to have been dishonest on a side wind or by some kind of default setting in the mechanism of the inquiry. It is an issue that must be articulated, addressed and adjudged head on.’

Where a doctor has made representations denying the factual basis of an allegation, to the GMC or other parties, you should not usually particularise as an allegation of dishonesty.

A doctor is entitled to put the prosecution to proof. A bare denial of an offence – no matter how often repeated or in what context – is unlikely to substantially increase the culpability of the doctor for the misconduct in question. As such, to charge the fact of the denial is likely to be deemed ‘unnecessary and oppressive’ as per the decision in Misra v GMC [2003] UKPC 7.

A practical example of the above might be a Doctor who charges a fee for undertaking a procedure on a number of patients who he has not actually seen. By the time of the referral to hearing we have cast iron proof that the doctor committed the offence.

We would not charge the doctor with dishonesty for initially stating that he had undertaken the procedures – no matter to whom or how often. That would be unnecessary. The substantive misconduct is in the offence not in the denial. (An exception to that approach might be a denial made under oath; for example at a coroner’s inquest. If you think an exception might apply discuss the matter with your SLA(M) or PLA).

You should however normally expect to charge acts which amount to a dishonest cover up. Any cover up of misconduct is likely to substantially increase the culpability of the doctor and accordingly to charge that cover up as a separate allegation of dishonesty can be legally justified. For example, we would charge the doctor with dishonesty if that doctor had tampered with medical records in an attempt to cover up his wrongdoing.


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Sexually motivated

If sexual motivation is part of our case, you must say so in the charge to ensure that the doctor knows the case they are required to meet.

The only exception to this is when you are specifically alleging a sexual relationship, as any engagement in a sexual relationship must necessarily include sexual motivation.

Example:

1. Between 10 February 2015 and 22 December 2015, you were the treating Consultant for Patient A.

2. Between 14 September 2015 and 20 November 2015 you engaged in a sexual relationship with Patient A.


Compared with:

Example:

1. Between 10 February 2015 and 22 December 2015, you were the treating Consultant for Patient A.

2. Between 14 September 2015 and 20 November 2015 you engaged in an improper emotional relationship with Patient A.

3. Your conduct as described at paragraph 2 above was sexually motivated.



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In the case of Rajeshwar, the charge alleged that the doctor had carried out breast examinations on two patients, S and B, which were not medically justified, were inappropriately carried out and were inadequately recorded. The charge did not allege that the doctor’s conduct was sexually motivated.

The court concluded that once witness statements had been obtained from S and B, ‘any reasonable assessment of the totality of the available evidence could have led to only one conclusion; that it was appropriate to allege a sexual and/or indecent motivation by way of amendment.’

The matter was remitted to allow the charge to be amended and the matter to be heard by a fresh Panel.

You should be specific as to which aspects you are charging as sexually motivated and which you are not.

English Language

The test that the GMC use to assess a doctor’s knowledge of English is the academic version of the International English Language Testing System (‘IELTS’) or the medical version of the Occupational English Test (‘OET’).

Both tests have four parts – listening, reading, writing and speaking and there is no pass or fail score for either test.

If the doctor has completed an assessment, the charges should state that the doctor has failed to obtain the minimum scores acceptable to the GMC, which are:

For IELTS:

a score of at least 7 in each of the areas tested

an overall score of at least 7.5.

For OET:

a score of at least B in each of the four areas tested

an overall score of at least B.

For both tests, the scores for each component must be obtained in a single test sitting.

See charge template for an English Language case with IELTS/OET scores.

http://livelink/edrms/llisapi.dll?func=ll&objId=63269077&objAction=download


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If the doctor has failed to undertake an assessment of his knowledge of English or failed to provide information in respect of that assessment, i.e. his results, this will be dealt with by our non-compliance procedures. The Tribunal does not have a power to take the non-compliance into account when determining the question of whether the doctor’s fitness to practise is impaired. The allegation should not refer to the fact of the non-compliance.

Misconduct v deficient professional performance (‘DPP’)

Where there are multiple criticisms or incidents giving rise to a cumulative concern regarding the doctor’s fitness to practise, you should give consideration to whether or not the GMC may pursue a charge of DPP rather than (or as well as) one of misconduct.

In order for deficient professional performance to pursued, the alleged facts must have been identified through the consideration of a ‘fair sample’ of the doctor’s work. That threshold will differ significantly in each instance, but relevant factors will include the:

number of criticisms/failings identified in respect of the doctor

volume of work of this nature which the doctor undertakes

duration of time over which alleged failings have occurred

In addition, there must be some commonality in the types of failing which have been identified. The Courts have indicated that ‘as a general rule the GMC should not seek to aggregate a number of totally dissimilar incidents and alleged shortcomings in order to make out a case of seriously deficient performance against any practitioner.’ Sadler V General Medical Council [2003] 1 WLR 2259

If you are unsure about whether there are sufficient grounds to pursue an allegation of deficient professional performance, you should discuss this with your manager.

In cases where you are alleging deficient professional performance in the absence of a performance assessment, you may wish to consider using a schedule to set out any repeated incidents of the same type.

Performance assessment

Where a performance assessment has been undertaken, the charges should include the date of the assessment and refer to the results of that assessment. You should not particularise with reference to ‘Good Medical Practice’ (‘GMP’). The categories against which the Assessment Team review a doctor’s professional performance refer to GMP but are not directly mapped against it. See the charge template for performance assessment cases.




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If the doctor has failed to submit to or comply with a performance assessment, this will be dealt with by our non-compliance procedures. The Tribunal does not have a power to take the non-compliance into account when determining the question of whether the doctor’s fitness to practise is impaired. The allegation should not refer to the fact of the non-compliance.

Health

Health charges should detail health assessments in chronological order. The name of the health assessor should be anonymised in the body of the charges.

A schedule should be used to detail the diagnosis and any other relevant confidential information about the doctor’s health, for example information received by GMC during the course of the investigation.

See the charge template for a health case.

If the doctor has failed to submit to or comply with a health assessment, this will be dealt with by our non-compliance procedures. The Tribunal does not have a power to take the non-compliance into account when determining the question of whether the doctor’s fitness to practise is impaired. The allegation should not refer to the fact of the non-compliance.

Conviction

Rule 34(5) provides that the only evidence which may be adduced in rebuttal of a conviction is evidence for the purposes of proving that the doctor is not the person convicted. In Smith v Linskills (A Firm) [1996] 1 W.L.R. 763 the Court confirmed that the Tribunal should not ‘go behind the conviction.’

The charge should include the date of conviction and details of the sentence imposed. You should usually quote from the certificate of conviction; unless doing so means that the wording of the charge does not make sense, in which case you may amend as appropriate. The numbering of the charges should follow the order of the certificate of conviction.

Where there are numerous convictions, you may include the total sentence (rather than the sentence for each separate conviction) but you should take care to calculate correctly, including only consecutive sentences.

You should include details of any other orders or requirements that are relevant to impairment, e.g. a Sexual Offences Prevention Order or the notification requirements





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associated with the Sex Offender’s Register. It is not usually necessary to include details of orders for costs or compensation.

See the charge template for a conviction case.

In Scotland, a case may be dismissed with an admonition. This is a warning to an offender not to commit another crime. No punishment is given, but it does result in a criminal record and should be charged as a conviction using the template above. The charges should not reference a sentence, but instead state:

‘On [DATE] the court dismissed the case with an admonition.’

If the case involves a conviction outside of the British Islands, the charges should specify that the offence would constitute a criminal offence in England and Wales.

See the charge template for a conviction outside of the British Islands.

Caution

The following conditions have to be met before a caution can be given:

there must be evidence of the offender’s guilt sufficient to give a realistic prospect of conviction

the offender must admit the offence

the offender must understand the significance of the caution and give informed consent to being cautioned

the offender must sign a declaration which confirms the allegation.

A caution is not brought about by any decision of the Court of Justice, so (unlike the position for a conviction) we cannot rely upon the certificate as conclusive evidence and the Tribunal may ‘look behind’ the caution.

If the doctor disputes the validity of a caution, it may be appropriate to allege misconduct in the alternative, but you should discuss this with your manager.

See the charge template for a caution case.

Absolute / Conditional discharge

By virtue of Section 14(1) Powers of Criminal Courts (Sentencing) Act 2000, an absolute or conditional discharge is not deemed to be a conviction. Therefore the impairment should be charged as misconduct rather than conviction. For that reason, you may need to include more contextual information about the nature of the misconduct. Where an order




http://www.gmc-uk.org/Section_14_Powers_of_Criminal_Courts__Sentencing__Act_2000.pdf_58769164.pdf


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for absolute or conditional discharge is made in respect of a conviction for a dishonesty offence, you should include a specific allegation of dishonesty, to ensure that the charge is adequately particularised and clear to the doctor and Tribunal.

See the charge template for an absolute discharge case.

See the charge template for a conditional discharge case.

Overseas determination

Where a doctor has been found impaired by another regulator, the GMC will accept that determination as evidence of impairment under the Medical Act.

The charges should include:

the date of the determination

the name of the regulator

the finding (e.g. professional misconduct)

the sanction imposed.

The charges should state if there was a failure to inform the GMC as this may in itself attract an allegation of misconduct.

See the charge template for an overseas determination case.

Failure to inform GMC

Paragraph 75 of GMP requires doctors to inform the GMC without delay if, anywhere in the world:

they have accepted a caution from the police or been criticised by a public inquiry

they have been charged with or found guilty of a criminal offence.

another professional body has made a finding of against their registration as a result of fitness to practise procedures.

A failure to comply with this obligation may in itself attract an allegation of misconduct.

See the charge template for a conviction / failure to inform case.





Documents

Guidance: Drafting Charges€¦ · In accordance with Rule 15, if the matter proceeds to a Medical Practitioners Tribunal (‘MPT’) hearing, the GMC shall give notice of ‘allegation