Acting to stop harm: the FCA and Appointed Representatives
In addition to the core duties with which a General Medical Council (‘GMC’) registered doctor must comply, there are additional obligations for those practising as NHS General Practitioners (‘GPs’) to observe. These obligations are set out in the NHS (Performers List) Regulations 2013 (‘the Regulations’).
These obligations are separate to the GMC duties but are equally vital for a GP to appreciate. Despite their importance however, these duties can sometimes be missed amongst the stress of practice and the primary requirements of registration.
Requirements with which a practitioner must comply
Paragraph 9 of the Regulations (Requirements with which a practitioner included in a performers list must comply) highlights the additional obligations that the Performers List requires of a GP. Amongst these, Paragraph 9(2) lays out a number of circumstances in which a Practitioner ‘must make a declaration to the Board’. These include if a Practitioner is (a) convicted of a criminal offence, (c) accepts a police caution or (j) becomes the subject of any investigation by any regulatory or other body.
The crucial point to note is that whatever the issue to declare, the obligation is placed firmly on the individual Practitioner. A GP will not have relinquished their obligations by virtue of someone else referring them to the Board. Nothing less than active declaration from the practitioner themselves is required, and a GP remains under an obligation to make a declaration even if the Board are fully aware of the details and circumstances surrounding the issue.
Of particular note for NHS GPs looking for clarity over what the Performers List requires of them are the obligations that come into play when they become subject to an ‘investigation’.
As touched on above, paragraph 9(2)(j) requires that a declaration be made whenever a Practitioner is ‘subject to an investigation by any regulatory or other body’. Additionally, 9(2)(k) requires a declaration once a GP becomes the subject of ‘any investigation in respect of any current or previous employment, or is informed of the outcome of any such investigation which includes a finding adverse to the Practitioner’.
In spite of the stringent requirements to declare, it is not always easy to identify when the aforementioned scenarios are engaged, and as such, whether a GP’s obligations have been triggered. This leaves scope for a scenario where a GP is the subject of complaint and placed in a precarious position. This is because it is not inconceivable that a GP may be keen to comply with the Regulations but, equally, wish to avoid placing unnecessary spotlight on their career. It is therefore necessary to consider the meaning of the term ‘investigation’ in order to provide some clarity.
The interpretation section of the Regulations defines ‘investigation’ in relation to a Practitioner as being ‘an investigation into the conduct of the Practitioner which could result in a finding relevant to the suitability of the Practitioner to be included in a list’. This definition is difficult to decipher as it contains the word ‘investigation’ and qualifies it using wording that does not elaborate on the issue. As such, it seems sensible to consider the ordinary meaning of the word ‘investigation’ and combine this with the context within which GPs work.
The dictionary definition of an investigation is the ‘conduct of some form of inquiry or examination’ and in the context of criminal matters or legal matters generally, there is a degree of formality or systematic inquiry.
Taken together with the above, the guidance set out in Maintaining High Professional Standards in (‘MHPS’) in the modern Health, Social Services and Public Safety (HPSS) helps provide clarity on what an investigation looks like for a GP subject to a complaint. It should be noted that guidance from the MHPS only applies to those who work for the NHS (although it also extends to private work undertaken by those who act both for the NHS and privately). As such, this guidance cannot be relied on for those GPs who maintain an entirely private practice.
For those to whom it applies, Section I of the MHPS guidance deals with ‘Action when a concern first arises’. Paragraph 3 of the Section states that: ‘All allegations…must be properly investigated’. Instinctively, this appears to suggest that an allegation, regardless of its credibility, necessitates an investigation. However, the MHPS goes on to explain from paragraph 15 onwards, under the heading ‘Informal Approach’, that following an allegation:
‘The first task of the clinical manager is to identify the nature of the problem or concern and to assess the seriousness of the issue on the information available. As a first step, preliminary enquiries are essential to verify or refute the substance and accuracy of any concerns or complaints. In addition it is necessary to decide whether an informal approach can address the problem, or whether a formal investigation is needed.’
In light of the above, it seems that there is scope for an interim stage where an allegation has been made but no investigation has been formalised. In short, a GP may not be the subject of an investigation despite the existence of a complaint. Yet, with a clinical manager assigned to the case, the position can change quickly.
In these circumstances, it is crucial that a GP swiftly finds out what stage concerns have reached. Perhaps the best advice is to ask an open question to the point of contact handling the complaint (in most cases, the clinical manager) about the possibility of an investigation. The wording of such a question is a matter of management and prudence dependent on the facts of the case.
The Performers List does not apply to all registered doctors, though comparable lists are in place for Dentists and Opticians. The lists are designed to provide the public with an additional layer of reassurance that those practising in the NHS are suitably qualified, trained, able to communicate competently and have passed other relevant checks. Although not always straightforward to navigate, those subject to the lists must pay close attention to the Regulations and bear in mind the importance of compliance with their obligations.
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