MPTS guidance, approved by the GMC, lists mitigating and aggravating factors a tribunal will take in to consideration. We look at these and their significance when considering fitness to practise and sanctions.
A medical practitioner’s tribunal (MPT) will consider mitigating and aggravating factors when considering a doctor’s fitness to practise and, if relevant, “against the central aim of sanctions.”
The sanction aims referred to above are:
- protect and promote the health, safety and wellbeing of the public
- promote and maintain public confidence in the medical profession
- promote and maintain proper professional standards and conduct for the members of the profession.
The MPTS guidance gives the following as examples of mitigating factors:
- Evidence that the doctor understands the problem and has insight, and of their attempts to address or remediate it.
- Evidence that the doctor is adhering to important principles of good practice (ie keeping up to date, working within their area of competence), and of the doctor’s character and previous history.
- Circumstances leading up to any incidents that raise concern – eg inexperience or a lack of training and supervision at work.
- Personal and professional matters, such as work-related stress.
- Lapse of time since an incident occurred.
Note however that this list is not an exhaustive list and individual circumstances will dictate the extent to which these, or other factors, are relevant. The guidance states that:
“The tribunal is less able to take mitigating factors into account when the concern is about patient safety, or is of a more serious nature, than if the concern is about public confidence in the profession.”
The guidance therefore makes clear that mitigation will be less relevant and effective for concerns and allegations relating to patient safety or those considered serious in nature (see aggravating factors below).
Aggravating factors are:
- Lack of insight – i.e. refusal to apologise, broken promises to remediate and failure to tell the truth.
- Previous finding of impairment – Where the GMC, or another regulator, has previously made findings of impaired fitness to practise and imposed a sanction on the doctor’s registration.
- Circumstances surrounding the event – i.e. failure to raise concerns and/or work collaboratively, discrimination and/or abuse.
- Conduct in a doctor’s personal life – issues relating to probity, drugs, misconduct involving violence or offences of a sexual nature
Certain fitness to practise concerns are deemed so serious that, according to the GMC, they are irremediable.
The GMC guidance states that irremediable concerns are “serious or persistent” actions “that, despite steps subsequently taken, action is needed to maintain public confidence. This might include where a doctor knew, or ought to have known, they were causing harm to patients, and should have taken steps earlier to prevent this.”
Insight and Remediation
Doctors must not underestimate the importance and significance of insight and remediation. Both are vitally important considerations before a medical practitioner’s tribunal.
What does insight and remediation look like?
The guidance defines remediation as:
“where a doctor addresses concerns about their knowledge, skills, conduct or behaviour. Remediation can take a number of forms, including coaching, mentoring, training, and rehabilitation (this list is not exhaustive), and, where fully successful, will make impairment unlikely.”
The guidance defines insight as:
“demonstrating reflection and remediation.”
The guidance goes on to say that a doctor is “likely to have insight” if they:
- accept they should have behaved differently (showing empathy and understanding)
- take timely steps to remediate and apologise at an early stage before the hearing
- demonstrate the timely development of insight during the investigation and hearing
How long does remediation take?
Remediation is often a long process. It is important that remediation is genuine and demonstrable to ensure good outcomes for doctors facing fitness to practise investigations and other issues. In many cases, remediation steps can take many months to fully achieve. Kings View can advise doctors on the best remediation strategy for their individual circumstances.
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Developed by leading legal representatives for medical professionals facing health and social care tribunals, Insight Works Training have designed unique and practical courses with focus on impairment, reflections and remediation.
Courses are delivered by both leading healthcare experts with years of experience in mentoring and coaching who also sit on regulatory tribunal panels and, leading legal experts in the field of defence at health and social care regulatory tribunals.
Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.
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Kings View are rated excellent and have successfully represented many doctors. We can advise doctors on the best remediation strategy for their individual circumstances.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.
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