What to expect from a Medical Council complaint

Date published

03/10/2018

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Ask any of your colleagues who have been subject to a Medical Council complaint, and you can be certain that their experience is not described as ‘enjoyable’. It is incredibly stressful to be subject to an investigation by your professional regulatory body. However, this stress is often amplified by a lack of understanding as to what lies ahead.

In the first of a two part article, Grace Keegan, Senior Associate with Kennedys, provides a practical insight as to what to expect from each stage in the process.

Part 1 – investigation of the complaint

Who has complained?

The overwhelming majority of complaints to the Medical Council in respect of clinicians are made by members of the public. However, anyone can make a complaint. This includes patients or their family members, employers, other healthcare professionals, members of the public, and the Medical Council itself.

What to do first

The first piece of correspondence that you will receive from the Medical Council is confirmation that a complaint has been made. A copy of the complaint will be provided, and you will be asked to provide your comments.

It is imperative that you notify your indemnity body immediately upon receipt of the complaint. Also note that you are under no obligation to provide any response to the complaint at this stage.

Depending on the nature and gravity of the complaint, your indemnity body may liaise directly with the Medical Council on your behalf, or may appoint solicitors to do so. You will likely be asked to provide a factual written response to the complaint at this stage, which will inform your advisors as to how best to proceed.

Investigation

The Medical Council appoints a case officer to manage each complaint. This case officer reviews each complaint and determines an investigation plan. This may include identifying:

  • Documentation required (e.g. medical records, personnel records etc.)
  • Persons to be interviewed
  • Expert reports to be commissioned.

This case plan is then considered by the Preliminary Proceedings Committee (PPC) at its next monthly meeting. The PPC usually approves the case plan, and can also direct that the Case Officer carries out any other investigations that it deems appropriate.

You will be provided with any information obtained by the Case Officer investigating the complaint.

Structuring a response

In the event that a response is to be provided to the complaint, your advisors will assist in its drafting.

It is often helpful to include your professional background at the outset, setting out a brief summary of your experience, your current employment position and any areas of special interest. A curriculum vitae can be attached as an appendix if required. This will provide the reader with context in respect of your experience.

The response should set out a factual chronology of treatment, referencing the medical records as appropriate. Any comments in relation to particular treatment provided, work practices or circumstances should be based on fact.

Clinicians often worry that they have no particular recollection of the events in question. It is perfectly adequate to make this clear in your response, and to refer to the contemporaneous medical records and your standard practice throughout.

If there is a particular reason as to why you have a clear recollection of the events in question, then make this clear. For example: ‘I remember this case due to its complexity, as it was subsequently discussed at a multi-disciplinary team meeting’.

If you feel that an apology is warranted, this should be included in your response. An apology is not an admission of liability.

Notwithstanding any professional advice received, you must be entirely happy with the contents of your response, and be willing to stand over its content. A copy will be sent to the complainant for their comments, and will be considered by any expert instructed in the matter. Further, if the complaint is referred to a Fitness to Practise Committee Inquiry, your response will also be available to the Committee members.

When to provide a response

Depending on the nature of the complaint, your advisors may recommend that certain information is obtained by the Case Officer, prior to providing a response. There will often be factual witness statements and medical records or investigation files, which will be of assistance when drafting a response.

However, if an expert is to be instructed, it is helpful for the expert to have your comments prior to preparing his or her report. This provides a context for the expert upon which to base his or her views, rather than simply the medical records. This is particularly important where a UK based expert is instructed by the Medical Council, who may be unfamiliar with the practicalities of practising within the Irish healthcare system.

You are however, under no obligation to provide a written response to the complaint unless the PPC orders that you do so. Failure to comply with an order to provide a written response to the PPC can result in a further referral to the Medical Council.

PPC

Once their investigation is complete the Case Officer prepares a Case Report, detailing all of the relevant information obtained from their investigation. You will be provided with a copy of the Case Report and all accompanying documentation. You will have 21 days to consider the material and provide any further response, if you wish. The matter will then be considered by the PPC at its next meeting.

Interestingly, having considered the information supplied by the Case Officer, the PPC does not make a decision on the case. It simply provides an opinion as to whether any further action should be taken about the complaint.

If it considers that there is a prima facie case to warrant further investigation, it refers the complaint to the Fitness to Practise Committee.

Alternatively, the PPC may form an opinion that:

  • There is insufficient cause to warrant further action, and the complaint file should be closed; or
  • The complaint should be referred to another body/authority, or to a professional competency scheme; or
  • The complaint should be resolved by mediation or other informal means (in practice this option is rarely recommended).

Either way, you will be notified of the PPC’s opinion.

At its next meeting, the Medical Council will be notified of the PPC’s opinion, and the Council then makes a final decision based on the PPC’s opinion.

How long?

The length of time taken for the PPC and Case Officer to investigate a complaint can vary hugely, depending on the nature and complexity of the complaint. However, even with a straightforward complaint, it is unlikely to be concluded in less than five months. A more serious or complex complaint can be at the PPC/investigation stage for up to 12 months.

Effect on clinicians

It is important to remember that the majority of complaints are closed after investigation. In 2017, 82% of the complaints investigated by the PPC were found to warrant no further action.

Notwithstanding this, the effect on clinicians, in terms of stress and worry cannot be underestimated. This is particularly apparent, where the investigation process is drawn out over a number of months. If you find yourself in this situation, it is important that you seek assistance from your indemnity body and / or your legal advisors. Where appropriate, it may also be helpful to seek support from your GP, family and friends.

In Part 2 of this article, Grace Keegan will explore the practicalities of undergoing a Fitness to Practise Committee Inquiry and explain what happens once the Inquiry has concluded.

This article was first published in the Autumn 2018 Edition of The Consultant, Official Journal of the Irish Hospital Consultants Association.

Read other items in Healthcare Brief - December 2018