“The effects of contextual factors” are relevant in GMC fitness to practise investigations.  To what extent are contextual factors relevant, and how can a doctor make their case?

The meaning of fitness to practise according to the GMC

Fitness to practise, in simple terms, means that a doctor must be competent to practise safely, establish and maintain effective relationships with patients and colleagues, respect patients’ autonomy, act responsibly, be honest, and practice within their own limitations.

When these, and other, qualities are called into question, the General Medical Council (GMC) may open a fitness to practise investigation.

Doctors should be aware that not all mistakes and/or errors will result in a GMC investigation.  GMC guidance states that “occasional one-off mistakes” are “unlikely in themselves to indicate a fitness to practise problem”.  However, “serious or persistent failures” are likely to put a doctor’s registration at risk.

More specifically, a question of fitness to practise is likely to arise if a doctor’s “serious or persistent failures” has:

• harmed patients or put patients at risk of harm;
• shown a deliberate or reckless disregard of clinical responsibilities towards patients;
• abused a patient’s trust or violated a patient’s autonomy or other fundamental rights; and/or
• behaved dishonestly, fraudulently or in a way designed to mislead or harm others.

Contextual Factors in Fitness to Practise

“The effects of contextual factors” are relevant in GMC fitness to practise investigations.  The GMC indicates that contextual factors are taken into consideration from the outset of a complaint or allegation (i.e. triage stage) against a doctor.

For example, in its guidance to responsible officer (ROs) referrals, the guidance suggests that ROs must address “whether the effects of contextual factors have been equally and fully considered for all doctors” referred by it.  The guidance goes on to give the following examples:

• What impact did poor lighting have on the doctor’s action?
• How did an IT failure contribute to a particular error?
• How did poorly designed packaging of a drug create confusion?
• How affected was a doctor by inadequate PPE?
• What part did fatigue play?

Why are ‘contextual factors’ important?

Mistakes, often, do not happen in isolation and there are usually other factors that contribute to mistakes such as staff and time pressures and IT faults etc.  Focussing on the individual means that contextual factors go unnoticed and are ultimately not addressed.

It is also important to say that contextual factors are often beyond the control of doctors.  Focussing on the individual will therefore make the process fundamentally unfair and unjust.  Research found that doctor “want to be certain that all contextual factors had been accounted for by the GMC before accepting individual responsibility”.

Importance of Engagement and Legal Advice at an Early Stage

We have written extensively on the importance of engaging with regulators during fitness to practise investigations.  Aside from the general expectation on doctors to engage with the GMC during an investigation, engagement might also result in the GMC closing an investigation without the need for a prolonged and expensive fitness to practise hearing.

At various stages during a GMC investigation, doctors will have the opportunity to submit responses and evidence to the GMC.  These are important opportunities to, for example, provide relevant evidence and/or information relating to contextual factors.

It is important for doctors to understand that obtaining the type of information and evidence that will support a case, relating to relevant contextual factors, is likely to be a long and potentially complex process and early legal advice is important.