At some point in all our lives we are likely to come across someone in the healthcare profession in their professional capacity. Doctors, nurses, dentists, physiotherapist and osteopaths to name but a few, all of these professions occupy a very special and privileged position in our society. In this article much if not all of the issues raised and discussed can be said to be equally applicable to any health care professionals.
So what makes a good practitioner? Whilst the answer to this maybe subjective, objectively I think it is commonly agreed that we want and need practitioners who know their “stuff” and can be held accountable if they behave in a way that we consider improper or inappropriate. This is so that when we walk into say a doctor’s surgery, we can be confident that our concerns will be listened to, examinations conducted appropriately in a dignified manner and after being asked relevant and sensible questions, we can then walk out having been given either advice, a prescription or referred to secondary services. In my view because of the implicit trust that we place in our doctors, the assumption we all make is that the doctor knows best and therefore the information we are given and / or medication prescribed is bound to be correct and hopefully make us feel better after our visit.
But what if the prescription you are given is incorrect or it is correct but it prescribes an incorrect dose? What if, during that examination the doctor touches you in a manner that you consider to be inappropriate or they treat or speak to you in a humiliating or condescending manner?
There is still a perception that the ‘doctor’ knows best and because of this, we often forget that doctors are after all human and like all humans, they come from all walks of life, have their own opinions, prejudices and above all they possess different levels of skills, knowledge and abilities. In the circumstances it not surprising that mistakes are made and practitioners do not always behave in a manner considered be- fitting of their profession.
Over the last 12 years I have adjudicated in a substantial number of cases where a doctor or nurse or midwife’s fitness to practice has been called into question in my capacity as a Chairperson of the Fitness to Practice Tribunal hearings at the Medical Practitioners’ Tribunal, Nursing and Midwifery Council and NHS England (South) Performer’s List Decision Panel. I have not only considered allegations of impaired fitness to practice as a tribunal member, but also as a Case Examiner where I evaluate and assess documentary evidence and advise on whether there is sufficient evidence to support allegations of impaired fitness to practice and whether the allegations should be referred to a hearing by a fitness to practice tribunal. I have encountered a wide range of complaints made, examples of which involved:
- Allegations of sexual relationship with patients.
- Violations of patient trust through inappropriate examinations.
- Poor record keeping.
- Criminal convictions for offences of dishonesty, drink driving, taking illegal drugs.
- Ill health (includes mental health issues) that compromises patient safety.
- Poor performance that put patients at risk of harm or has caused actual harm.
Whilst the outcome of any hearing is always case specific, some cases are, by their very nature far more difficult to adjudicate, such as allegations of inappropriate behaviour where very often it is the patient’s word against the doctor’s. In some cases, it is possible that the sanction a tribunal chooses to impose following a hearing maybe influenced by how the practitioner has responded to the allegations. From my experience, I would say that most practitioners know what is expected of them – what I mean by this is they know what is regarded as being the appropriate standards of conduct, performance and behaviour. Therefore, the best advice I would give is wherever possible, a practitioner who has been accused of misconduct should make early admissions if appropriate. Don’t make attempts to lie or cover up as that only makes it worse. When the regulatory body conducts its investigations, it leaves no stone unturned. The practitioner is asked to provide a list of all the places where they have worked and the net of enquiry is cast wide because the regulator will be concerned to know if any other allegations have been previously made. Very often I have come across cases where a mistake is made say through human error but is then compounded by denials or attempts at covering up. Such conduct not only calls into question the doctor’s ability but also his / her honesty and integrity. No-one likes a liar least of all tribunal members - honesty and integrity are said to be the bedrock of healthcare professions. Therefore, in my experience, cases that involve dishonesty tend to attract the more severe sanction.
Quite often I have heard patients when giving evidence say that I would not be here if the doctor had acknowledged the mistake and/or apologised. Apologies used to be viewed as admissions of guilt but quite often that is not how a tribunal views them. An apology is often viewed favourably because it can be seen as evidence of insight. A tribunal’s primary consideration is to protect the public from unsafe practitioners, uphold proper standards of conduct and behavior and to maintain public confidence in the professions. A practitioner must therefore satisfy the tribunal that they have insight into how the alleged conduct may impact on the public and the reputation of the profession. Remediation is another important factor. Tribunals must be satisfied that there is no risk or that the risk of repetition is low. Therefore practitioners must also produce evidence to demonstrate that the concerns raised have been addressed.
Should a tribunal decide that a practitioner’s fitness to practice is impaired, the range of sanctions that can be imposed include restricting practice with conditions suspension and the most serious of which is striking off or removal from the register. Given the litigious age that we now live in, I cannot give advice that will guarantee avoidance of a referral to a Fitness to Practice Tribunal. However, I can say that engaging with and having a working knowledge of your professional regulator’s Codes of Ethics, is in my view likely to reduce the risk of a referral being made. Should you find yourself in the unfortunate position of being investigated and / or referred to a Fitness to Practice Tribunal, then my top tips are – (i) wherever possible make early admissions, (ii) apologies, (iii) put things right (iv) demonstrate insight and remorse.
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Evis Samupfonda was called to the Bar of England and Wales in 1992. For the last 10 years Evis has been working within the professional regulatory environment in the following roles
- Lay chairman, Fitness to Practise, Medical Practitioners Tribunal Service (formerly GMC)
- Lay Chairman, Fitness to Practise, Nursing and Midwifery Council
- Lay Chairman, NHS England South (South East) Performers List Decision Panel
- Case Examiner, Fitness to Practise, Nursing and Midwifery Council
- Legally Qualified Chairman, Metropolitan Police Misconduct Tribunal
- Lay panel member, Ministry of Defence Police Misconduct Tribunsl
Evis currently sits as a part-time First-tier-Tribunal Judge in the Property chamber. She's also a trained mediator.
Any content, views, opinions and/or responses are solely the personal views, opinions and responsibility of myself and do not necessarily reflect the opinions of CNA Hardy.