Guidance on Undertakings

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Barry Griffin
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Guidance on Undertakings Introduction and overview 1 The purpose of this guidance is to demonstrate the way in which Rule 10 of the Fitness to Practise Rules 2004 (revised) is to be put into effect

2 This guidance should be considered together with other guidance for decision makers, including the main decision making guidance for case examiners (CEs) and guidance on single clinical incidents.

1 Guidance on Undertakings Introduction and overview 1 The purpose of this guidance is to demonstrate the way in which Rule 10 of the Fitness to Practise Rules 2004 (revised) is to be put into effect by the General Medical Council (GMC). 2 This guidance should be considered together with other guidance for decision makers, including the main decision making guidance for case examiners (CEs) and guidance on single clinical incidents. 3 Rule 10 provides for the agreement of undertakings between a doctor and the GMC, when it appears that the doctor s fitness to practise is impaired and the doctor is prepared to comply with the undertakings. 4 Undertakings may be appropriate in cases involving doctors who are registered both with and without a licence to practise. 5 A doctor who is subject to undertakings is entitled to hold a licence to practise, however will need to comply with the terms of the undertakings. 6 When the CEs have decided that there is a realistic prospect of a medical practitioners tribunal finding a doctor s fitness to practise impaired (including in the event of the reoccurrence of a medical condition) and that undertakings will be sufficient to protect the patients and maintain public confidence, it will be irrelevant whether or not the doctor holds a licence to practise. Fitness to practise sanctions attach to registration and all doctors on the medical register are required to comply with Good medical practice. Even when the issues are practice related and the doctor has relinquished their licence to practise, practice related undertakings may still be the most appropriate approach, including a commitment to work under medical supervision or undergo retraining in the event they return to practice. 1

2 7 A registered doctor may apply for a licence at any time and that doctor s practice will only be restricted if action has been taken on their registration. If that doctor later obtains a licence, they will need to comply with any undertakings. Case examiners will need to consider in an individual case the most appropriate sanction keeping in mind the possibility of a doctor regaining their licence. 8 Undertakings may include restrictions on the doctor s practice or activity, or the commitment to undergo/remain under medical supervision or undertake retraining. The undertakings will be disclosed to the doctor s employer and to any other enquirer, unless they contain confidential information about the doctor s health. Undertakings relating to a doctor s practice are published on the List of Registered Medical Practitioners (LRMP) on the GMC s website. 9 The GMC s Case Review Team (CRT) will monitor the doctor s compliance with undertakings. Following a period of undertakings, and taking into account any new information received, the case examiners may decide to maintain, vary or revoke the undertakings agreed. CEs will have regard both to compliance and insight when considering whether to vary or retain undertakings. The process for agreeing undertakings 10 Following the completion of our preliminary enquiries, the CEs will consider all the available evidence, including, where relevant, any performance, language and/or health assessment reports, and apply the realistic prospect test. The investigation committee or case examiner must have in mind the GMC s duty to protect the public which includes promoting and maintaining the health, and safety and well-being of the public; public confidence in the profession; and, proper standards and conduct for doctors, in considering whether there is a realistic prospect of establishing that a doctor s fitness to practise is impaired to a degree justifying action on registration. 11 When the Investigation Committee (IC) or CEs are satisfied that there is no realistic prospect of establishing that the doctor s fitness to practise is impaired, they should consider whether it is appropriate to issue a warning. If they conclude that a warning is not appropriate, the case should be concluded. 12 Rule 10 of the General Medical Council (Fitness to Practise) Rules 2004 (as amended) provides that where it appears to the CEs that: (a) the practitioner s fitness to practise is impaired; or (b) the practitioner suffers from a continuing or episodic physical or mental condition which, although in remission at the time of the assessment, may 2

3 be expected to cause a recurrence of impairment of the practitioner's fitness to practise, they may recommend that the practitioner be invited to comply with such undertakings as they think fit (including any restrictions on practice). 13 Rule 10(5) provides: (5) The Registrar shall not invite the practitioner to comply with any such undertakings where there is a realistic prospect that, if the allegation were referred to an medical practitioners tribunal, his name would be erased from the register. 14 If, during the course of our enquiries and investigation, it appears likely that undertakings may be an appropriate outcome, the Registrar will contact the complainant or referring body to seek their views on the possibility of concluding the case by agreeing undertakings with the doctor. 15 Undertakings may only be proposed when, to do so, would be sufficient to protect patients and maintain public confidence. Undertakings may not be proposed where there is a realistic prospect that, if the allegations were referred to a tribunal, the doctor would be erased from the Register. 16 If there has been an assessment of the doctor s health or performance, the assessments will include an opinion on whether the doctor is fit to practise, either generally or on a limited basis. Assessment reports will also include recommendations on the management of the case. CEs should take account of the recommendations and any additional evidence to decide whether the case reaches the investigation stage test threshold. 17 If there has been an assessment of the doctor s language, CEs should refer to the GMC policy on the level of knowledge required to practise medicine safely which is published on our website here. Where a doctor has failed to achieve the minimum criteria to satisfy us they have the necessary knowledge of English this is likely to indicate the case reaches the investigation stage threshold. CEs should also take account of any additional evidence available. 18 In situations in which the allegations relate solely to a doctor s health and or language, the Medical Act specifically precludes the possibility of erasure. CEs must, however, consider all relevant evidence relating to the doctor s fitness to practise, and there will be situations in which issues of conduct or performance, outside the scope of the health or language assessment, raise the possibility of erasure. In considering whether there is a realistic prospect of erasure, the CEs should refer to the guidance on the investigation stage test and to the Sanctions Guidance (ISG). 3

4 19 If the CEs are satisfied that there is no realistic prospect of the doctor being erased, they may consider whether undertakings are sufficient to protect the public. The CEs must also have in mind the GMC s duty to act in the public interest, which includes the protection of patients and maintaining the public confidence in the profession. 20 When a medical and a lay CE recommend that the doctor should be offered undertakings, the Registrar will write to the doctor inviting him to state, within 28 days, whether he is prepared to comply with the undertakings. 21 If undertakings have been offered or accepted, the case can still be referred to a tribunal, if: a The practitioner declines to accept the proposed undertakings, or fails to reply to an invitation to do so. b The practitioner subsequently breaches the undertakings. c The GMC receives new information which suggests deterioration in the practitioner s English language, health or performance, or otherwise gives rise to further concerns.. 22 Under rule 10(6), where undertakings have been agreed, the Registrar may carry out any additional enquiries that are considered necessary. These might take the form of an assessment of the doctor s health or performance or some other form of enquiry. Further enquiries may be required, for example, to assess whether undertakings should be varied or lifted. Criteria for agreeing undertakings 23 If properly managed, undertakings provide an effective tool for responding effectively and proportionately to serious fitness to practise concerns. Undertakings mean that we can intervene at an early stage and agree measures to protect patients, by restricting the doctor s practice or by setting out measures for remediation and development. 24 In considering whether undertakings may be appropriate, the CEs shall have regard to the guidance for decision-makers on the application of the investigation stage test. 25 When considering whether to offer the doctor to accept undertakings, CEs should consider: a Whether undertakings are workable, measurable, attainable, proportionate and offer sufficient safeguards to protect the public. 4

5 b Whether there is reason to believe the doctor will comply with the undertakings. 26 In assessing the likelihood that the doctor will comply with undertakings, Case Examiners should consider any history of non-compliance in the doctor s case or decisions made under paragraph 5A(3D) or paragraph 5C(4) of Schedule 4 of the Medical Act A previous non-compliance order may suggest that a doctor is less likely to comply with undertakings, but should only form one part of a case examiners considerations and should not, in itself, preclude the possibility of agreeing undertakings. 27 In particular, in performance cases, emphasis on retraining and development is likely to be more effective in addressing the cause of the problem than imposing a period of suspension. In cases where the allegations relate solely to conduct issues such as dishonesty undertakings are not likely to be appropriate although undertakings may be appropriate in multi-factorial cases involving misconduct (where the underlying cause may be linked to a health or performance issue). 28 Under Rule 10(5) the CEs cannot consider undertakings when there is a realistic prospect of the doctor being erased if referred to a tribunal hearing. Indicators that there is a realistic prospect of the doctor being erased if the case were referred to a tribunal include: a The allegations involve dishonesty (especially where persistent or covered up), violence or indecency and abuse of position of trust. b A particularly serious departure from or reckless disregard for the principles set out in Good Medical Practice. c Violation of a patient s rights or exploiting a vulnerable adult or child for example in relation to expressing personal beliefs. d Putting the doctor s own interests before those of patient, for example in relation to conflicts of interest. 29 Undertakings are also not likely to be appropriate where there is any significant disagreement as to the facts. 30 CEs should consider any comments provided by the complainant or referring body together with other relevant considerations. The CEs are not obliged to comply with any preferences expressed by the complainant or referring body but should have regard to them. 5

6 Reasons for decision 31 The CEs shall record the reasons for their decision. In particular, they shall record their reasons for agreeing undertakings when the complainant or referring body has made representations that the case should be referred to a tribunal hearing. Categories of undertaking 32 There are three broad categories of undertaking: a Those which relate to the treatment of a doctor s underlying health condition. b Those which relate to the need to address deficiencies in clinical performance or knowledge of English. c Those which relate to multi-factorial cases involving misconduct (where the underlying cause may relate to a health or performance issue). 33 CEs may use their discretion in drawing up the undertakings, but they should be based on the balance of opinion within any available reports. CEs should ensure that any undertakings are workable, measurable, attainable and proportionate, and are sufficient to protect patients and the public, and are an effective way of addressing the concerns about the doctor. On occasion this may include restricting practice in a specific area of medicine or in relation to a specific procedure Link to set of undertakings to be used when a doctor is restricted in one area of medicine or from performing a specific procedure. 34 Undertakings should normally follow the format of the standard undertakings in the bank of conditions and undertakings. Bespoke undertakings should normally only be drafted if there is not an appropriate standard undertaking available. 35 Unless there are exceptional circumstances, an undertaking which requires a doctor to refrain from all forms of medical practice should only be used in health cases. Any exception to be agreed with Head of Case Review. Link to undertakings bank 6

7 Amending undertakings 1 36 The Rules allow for undertakings to be amended if, as a result of information received, including any report or further assessment, it appears to the CEs that the undertakings should be varied or cease to apply. 37 If it seems that an amendment to the undertakings would be appropriate, the CEs should invite the doctor to indicate whether he or she agrees with the proposed amendment to the original undertakings. If the doctor agrees, there is no problem. However, if the doctor does not agree with the proposed change, the CEs must decide whether, in the light of comments made by the doctor, to continue with the original undertakings or to refer the case to a tribunal. 1 For further information, see separate guidance on varying undertakings. 7

Undertakings at Medical Practitioners Tribunal hearings

Undertakings at Medical Practitioners Tribunal hearings 1 Under Rules 17(4) and 22(3) of the General Medical Council (Fitness to Practise (FTP) Rules Order of Council 2004, the Medical Practitioners Tribunal