A gentler attitude to gripes in pandemic

First published in Independent Practitioner Today in November 2020

How will the GMC deal with complaints about your practice during the pandemic? Solicitor and doctor Tania Francis examines the latest guidance.

The GMC issues guidance to its decision makers which they should follow when making decisions about how complaints about doctors should be dealt with. For example, there is guidance about how to deal with concerns about a doctor’s health, or doctors who self-prescribe, or doctors who have criminal convictions or cautions.

The GMC have now published guidance for decision makers on how to assess the risk posed by a doctor in relation to allegations of impaired fitness to practise in a clinical setting during the Covid-19 pandemic. https://www.gmc-uk.org/-/media/documents/dc13028-guidance-for-decision-makers-on-covid-19–external-version-_pdf-83985701.pdf

In early March 2020, a number of the health regulators (including the GMC) issued a joint statement about regulation in the pandemic. In this statement, they recognised that professionals might need to depart from established procedures, and sought to reassure registrants that concerns would always be considered on the specific facts of the case, taking into accounts the environment in which they were working and any relevant information about resources, guidelines or protocols in place at the time.

The GMC and the Chief Medical officers went on to emphasise that all doctors are expected to follow GMC guidance and use their judgement in applying the principles to the situations they face, including the very abnormal emergency situation of the pandemic. They stated that a “rational approach to varying practice in an emergency is part of that professional response”.

The GMC’s guidance for decision makers gives more detail about how they will assess allegations arising out of the Covid-19 pandemic, taking into account the circumstances and how they impacted on the systems in which doctors worked (and continue to work). They say that they will take into account issues such as:

• the availability of resources and the changes due to social distancing guidance
• the uncertainty and rapidly evolving evidence-base about treating Covid-19
• the disproportionate impact of Covid-19 on black and minority ethnic groups
• availability of PPE
• staff shortages due to illness or self-isolation
• working outside of normal practice and in unfamiliar roles
• rapidly changing and sometimes conflicting guidance and protocols.

So, what does this actually mean? How will they take these issues into account?
The truth is of course that we won’t know until complaints start being made to the GMC about doctors’ actions during the pandemic, and we can see how the GMC deal with these. There are likely to be some difficult cases which go to a hearing before a Medical Practitioners Tribunal because the GMC are unable to reach a decision to close the case or resolve it at an earlier stage. Even if the Tribunal then decide that the allegations do not amount to impaired fitness to practice, that doctor will have been through months or years of stress and uncertainty.

The GMC have given some examples of allegations which are unlikely to be pursued – such as undertaking remote consultations rather than seeing the patient face to face; delay for non Covid-19 treatment where access to treatment or diagnostic services was limited or unavailable; using PPE outside of the norm (ie. reusing PPE because of diminishing stocks) where this was an agreed response and concerns had been raised. They have also given examples of cases which might seem serious but which would be unlikely to raise a question of impaired fitness to practice because they were reasonable in the circumstances – such as where a doctor’s actions may have led to harm or risk of harm to a patient but the doctor was required to work outside their usual area of practice with limited or no support and guidance; a doctor denied access to treatment but this was a reasonable decision in the circumstances of the pandemic at that time; a doctor did not treat a patient due to a lack of PPE but the doctor was at higher risk of infection and had raised concerns or tried to make alternative arrangements for the patient. You can see that these examples are carefully nuanced and caveated and very fact specific – thus, the defence of a doctor facing such allegations would rely on the evidence of the circumstances being available, months or even years down the line.

There is little we can do to prevent or limit how far such complaints proceed, but it is well worth keeping careful records of current resources, guidance and protocols during the pandemic, especially as these can change so rapidly. Records should be carefully dated and stored securely. You could consider keeping a diary of your commitments whilst you are not working in your usual role, together with a note of why you were assigned to that ward/clinic/list (perhaps because the usual doctors had themselves been redeployed elsewhere, or were ill), who you worked with (were you supervised if you required supervision in an area which was not your usual area of practice?), and whether there were sufficient medical and nursing staff on duty.

You should (as always) keep full, accurate and contemporaneous clinical records in the patient’s notes including, if possible, the reasons for treatment decisions, and whether/who you have discussed these with. Of course, the very nature of the circumstances we find ourselves in means that you may have limited time to carefully file all the guidance and keep perfect notes, when you barely have time to eat and drink and haven’t had any annual leave for months. It is to be hoped that our digital world will make it possible to turn the clock back and remember what the situation was like, if we ever get to a time when it has been forgotten.