In the absence of representation from the Trust, Dr Benson*, a consultant physician, contacted Medical Protection for support at a GMC investigation.
Dr Benson, an NHS consultant physician*, was involved in the care of an NHS patient who died of multi-organ failure following complications from a radiology investigation. There were differences in opinion among various doctors involved regarding the care provided. The matter was referred to the GMC after an internal investigation by the Trust and an inquest by the coroner.
The NHS Trust’s legal team had originally felt it could represent all employees involved. However, Dr Benson was informed only a few days before the inquest was due to commence that, due to a disagreement between themselves and other doctors involved, they could no longer represent them.
How Medical Protection helped
Dr Benson contacted Medical Protection via the urgent 24/7 out-of-hours telephone line for assistance.
The medicolegal consultant (MLC) for the case promptly took steps to manage the situation, including appointing a solicitor who was instructed to represent Dr Benson’s interests and acquiring an experienced barrister to support him through the GMC investigation.
A further complication arose when a criminal allegation was made arising from the Trust’s investigation of the matter and Dr Benson was contacted by the police to be interviewed under caution. The solicitor on the case corresponded with the police inspector on Dr Benson’s behalf and successfully disputed the indication to conduct an interview under caution. Instead, the solicitor attended the police station with Dr Benson to give a witness statement and the criminal matter was eventually closed.
At the inquest, Dr Benson was criticised in the coroner’s conclusion. Pursuant to the obligations set out in paragraph 75 of Good Medical Practice, they made a self-referral to the GMC. Dr Benson’s solicitor and MLC were able to provide guidance and support at all stages of this process, including undertaking meaningful reflection and identifying targeted CPD, to help demonstrate the learning taken from these events and changes to future practice.
The GMC opened an investigation and instructed an expert to review the case, who was critical of Dr Benson’s care, leading to allegations of impaired fitness to practise being put to the member at the GMC’s ‘Rule 7’ stage.
As part of assisting the member in preparing a response to these allegations, Medical Protection instructed its own defence expert, who in contrast to the GMC’s, was almost entirely supportive of the care provided.
The defence expert’s report and Dr Benson’s efforts in reflection and remediation were key in securing a very good outcome at the ‘Rule 7’ stage. The options available to the GMC’s case examiners at the ‘Rule 7’ stage are to close the case with no action, offer a warning, offer undertakings (usually reserved for health cases) or to refer the case on to the Medical Practitioner Tribunal Service for a Fitness to Practise hearing.
After consideration of this complex case, the case examiners decided that the ‘realistic prospect test’ of establishing that Dr Benson’s fitness to practise was currently impaired was not met and that a warning would not be appropriate. The case was closed with no further action.
How did it end?
On hearing this outcome from the GMC, the patient’s family were very unhappy and sought a review of this decision. This was a distressing development for our member at the end of what had already been a long-running and stressful experience. Throughout the case, Dr Benson had access to Medical Protection’s free and independent counselling service.
The MLC provided further instructions to the solicitor who provided strong representations on Dr Benson’s behalf to the GMC as to why it was felt the threshold was not met to review the original decision. These submissions were successful, and the outcome remained that the case was closed with no further action.
All these developments unfortunately stemmed from one single involvement in this patient’s care, demonstrating the importance of having professional protection and the support and expertise of Medical Protection’s medicolegal team. Analysis of GMC representation and outcome statistics 2018-2022 obtained through a freedom of information request show that consultants with representation are likely to receive a more lenient sanction from the GMC than those without representation.
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*Names and locations have been changed to protect member confidentiality