106: Should healthcare regulators take steps to safeguard the mental health of registrants?

This blog was co-written by Kay-Dene Petgrave, former trainee solicitor at BDB Pitmans. 

The overarching duty of healthcare regulators is to protect the public from harm, which they do by investigating allegations of impaired fitness to practise by the professionals they regulate. But what about protecting the registrant?

The Health and Safety Executive reports that one in four people in the UK will experience a mental health problem at some point. It goes without saying that being subject to an allegation of impaired fitness to practise can be a very distressing experience for a registrant, with potentially serious ramifications for their mental health.

Earlier this year, the General Medical Council (GMC) published a report which revealed that 29 doctors died during fitness to practise (FTP) investigations and monitoring between 2018 and 2020, of which five were confirmed as suicide. Reporting of this nature follows the death of Dr Suresh in 2018, who took his own life hours after receiving a letter from the GMC informing him that he would be subject to an interim orders tribunal for allegations of sexual touching.  Following an Inquest into his death, it was reported that the Coroner intended to write to his NHS Trust and the GMC to recommend some procedural changes.  It is clear that regulators should take steps to ensure FTP investigations and proceedings are conducted in a manner which has regard to the mental health of the registrant.

When considering whether an interim order is necessary, FTP panels must of course balance the need to protect the public and the public interest with the registrant’s own interests.  A recent reminder is the case of MXM v GMC [2022] EWHC 817 (Admin), in which the High Court terminated an interim suspension order imposed against a GP accused of sexual misconduct on the basis that proportionality had not been applied properly by the FTP Panel when considering the type of interim sanction or its duration. Mrs Justice Steyn DBE stressed the importance of considering the

‘Grave effect of an interim suspension order on the [registrant’s] ability to earn a living, to support his family, and on his reputation and ability to demonstrate when any charges are determined that he can practise without incident‘ [para 94].

The judgment serves as a reminder that FTP panels should consider the welfare of the registrant when making decisions about fitness to practise.

What can regulators and FTP panels do?

• Consider seeking advice from a mental health expert about how best to ensure interactions with registrants are sensitive, supportive and compassionate, and provide appropriate training to case managers;
• Create a framework to identify those registrants who are particularly vulnerable or at risk;
• Signpost registrants to psychological support as well as unions;
• Provide registrants with information about the concern as early as possible, together with contact details for the case manager allocated to the matter;
• Provide registrants with a clear timeline for the FTP investigation and proceedings and regular updates throughout;
• Conduct the investigation and any subsequent proceedings as promptly and efficiently as possible;
• Apply for and impose interim sanctions proportionately;
• Consider measures which might support the registrant during hearings – including whether proceedings should be conducted in private; and
• Seek feedback from registrants to identify improvements which can be made and ensure such feedback is regularly reviewed and considered for implementation.

If you have any questions about the information contained in this blog please contact Matthew Smith or Olivia Peake.