The Anatomy of a Regulatory Case

25 August 2015

Facing an investigation from the Medical Council can be one of the most stressful times of a doctor’s career. The process can be unfamiliar and intimidating and the potential outcomes devastating. Being aware of what to expect and how the Medical Council works can often make the experience easier and less daunting.

The Medical Council has a number of roles, but they are all subservient to its number one purpose: good professional practice in the interests of patient safety and high quality care.

The Medical Council  was created by statute and is governed by the Medical Practitioners Act 2007, which confers upon the organisation a number of regulatory  powers. The Act says that the Medical Council is there to protect the public, to introduce measures for the control of medical practitioners and to make sure there is a framework in place to investigate complaints against doctors.

The process is triggered by a complaint against a named doctor on the medical register. These can come from anyone: patients, relatives, patient representatives, fellow doctors, other healthcare professionals or hospital colleagues and even the Medical Council itself.

Despite all these potential avenues of complaints, statistics indicate that by far the majority are made by members of the public. In 2011/2012 some 86% of complaints received were from the public, but less than 10% of these progressed to a Fitness to Practise Committee hearing.

However if a colleague, employer or the Medical Council is the complainant there is a much higher chance of the complaint proceeding to a Fitness to Practise Committee hearing. For example, 82% of complaints received from employers were referred to an inquiry.

There are seven grounds on which someone can make a complaint, they are:

  • Professional Misconduct
  • Poor Professional Performance
  • Relevant Medical Disability
  • Failure to comply with condition(s)
  • Failure to comply with an undertaking
  • Contravention of the 2007 Act
  • Convictions for an offence triable on indictment

Once a complaint is made a case officer for the Medical Council will write to the doctor. The doctor is normally provided with a full copy of the complaint, unless other doctors are involved – in which case it is partially redacted.

The letter gives a brief description of the complaint process; it describes the role of the case officer, which is independent and not involved in decision making, and advises the doctor to take legal advice.

The doctor is also asked to provide evidence of their professional competence. It is important to make clear that the doctor is under no obligation to respond to the substance of the complaint at the initial stage of the investigation.

This initial process is handled by the Preliminary Proceedings Committee (PPC), which investigates the complaint but does not adjudicate; it simply makes a recommendation to the Medical Council as to how the complaint should be handled.

The form which the PPC Investigation takes depends on the nature of the complaint. In most cases involving clinical care the PPC will ask for copies of medical records for review .The Committee often asks for statements or reports from other doctors who have been involved in the patients care. They will also invite the doctor who has received the complaint to make comments on it.

Our experience is if the doctor does not make comments to the PPC after the initial complaint then the PPC will direct the practitioner to make a response.

Once you provide a response back to PPC, this is usually then sent to the complainant so they can respond to your comments.  

The PPC is also increasingly making use of expert evidence, particularly in cases which are technical or highly specialist in nature, where the committee lacks expertise in a particular area.

At the end of the investigation the PPC is left with two options. First, it can decide there is a Prima Facie case to answer and refer it forward the Fitness to Practise Committee. If not, the committee can make a recommendation to the Medical Council, which most commonly is that no further action be taken, but can also include mediation or referral to another body.

Statistics taken from the annual report in 2014 show that out of 303 cases, in 252 no further action was recommended by the PPC, while 24 were progressed to the Fitness to Practise Committee.

If a case is progressed to the Fitness to Practise Committee an inquiry is held.

An inquiry is a hearing similar to a hearing before a court or a tribunal in that sworn oral evidence is heard. At the inquiry the Fitness to Practise Committee is normally made up of three people – two non-medical and one medical. A legal adviser, known as a Legal Assessor also sits with the Committee to advise on the law and procedure.

The hearing is opened by the legal representatives of the Medical Council, who are required to present the case against the doctor, including any evidence gathered during the investigation (for example, from expert witnesses). The doctor subject to the inquiry is then entitled to give evidence and call witnesses or produce documentation in defence.

If the Fitness to Practise Committee finds that one or more allegations are proven the Council can impose one of the following sanctions:

  • Advise, admonish or censure in writing;
  • Censure in writing, and fine up to €5,000;
  • Attach conditions to a doctor’s registration;
  • Transfer a doctor’s registration to another division of the register;
  • Suspend a doctor’s registration for a specified period;
  • Cancel a doctor’s registration;
  • Prohibit a doctor from applying for restoration to the register for a specified period.

If the Medical Council decides to impose any of the above sanctions, except for advice, admonishment and censure, there is a right of appeal against the Medical Council’s decision to the High Court.

In 2014 eight doctors were found guilty of professional misconduct, two were found guilty of poor professional performance and five were found fit practise or had no case to answer. In a further four cases the Fitness to Practise Committee came to an agreement with the doctor on a course of action to be followed to address the complaint.