The case for legal advice – data and research

We know, from over a combined 30 years’ experience representing doctors and other medical professionals, that legal advice and representation does make a positive difference.  The difference having legal advice makes is also backed up by an increasing body of data and research.

A 2019 study peer-reviewed study published in the journal BMC Medicine found that doctors who lacked legal representation tended to receive more serious outcomes.  The study results showed clearly that both “non-attendance and lack of legal representation” were consistently related to more serious outcomes.”

A similar 2015 study revealed that – of the two outcomes, suspension or erasure – doctors with legal representation at hearings were significantly more likely to merely be suspended (72%), rather than struck off (28%). In contrast, 69% of self-represented doctors were struck off.

More recently, research published concluded that:

“Legal representation was seen as important by participants because legal advice could support and guide registrants through the FtP process, which is complex and legalistic. Legal advice was seen as important in aiding registrants to understand regulators’ expectations, especially in terms of the need for registrants to demonstrate insight and perhaps to show evidence of remediation activities. Lack of legal representation was, therefore, seen to potentially have an impact in terms of the seriousness of the outcome for registrants who are perhaps unaware of how to present their case to best effect.”

Engagement is key

Key to good outcomes for doctors and other healthcare professionals also include meaningful engagement with their regulator.  Engagement with regulators is a key consideration when considering, for example, any aggravating and mitigating factors in a fitness to practise case. 

Furthermore, not attending the hearing meant that registrants were not able to defend themselves against concerns raised, and panels were more dependent on the statements of witnesses. The registrant’s credibility and reliability as a witness, demonstration of insight, remorse and regret, and any remediation which has taken place are also important aggravating and mitigating factors.

Legal representation also plays a crucial role in helping doctors and other healthcare professionals gain a clear understanding of complex legal processes and procedures.  Research by the General Dental Council, for example, concluded that:

“The extent to which a registrant engages with the regulatory process, from initial complaint to the final hearing, has been recognised as vitally important to the severity of sanctions.  The research has shown that registrant’s engagement and legal representation can impact on decisions about seriousness, and that the lack of legal representation has been identified as being associated with more severe sanctions outcomes in fitness to practise cases.

“Legal representation was seen as important by participants because legal advice could support and guide registrants through the FtP process, which is complex and legalistic. Legal advice was seen as important in aiding registrants to understand regulators’ expectations, especially in terms of the need for registrants to demonstrate insight and perhaps to show evidence of remediation activities. Lack of legal representation was, therefore, seen to potentially have an impact in terms of the seriousness of the outcome for registrants who are perhaps unaware of how to present their case to best effect.”

BAME Health & Care Professionals

It is a well known and recorded fact that certain groups are over-represented in fitness to practise referrals mainly linked to “country of origin or ethnicity (i.e. BAME) or language proficiency” of the professionals.  The demographic and professions that are most over-represented were found to be male, older, overseas-trained, doctors, dentists, chiropractors, social workers and paramedics. 

Doctors and other healthcare professionals who are at particular risk or vulnerable due to any of the factors referred to above should carefully consider the need for legal representation.  It is a sad fact that certain professional groups and demographics are overrepresented in fitness to practise investigations and, linked to this, face poorer outcomes and harsher sanctions.