Doctors who have been unexpectedly contacted by the GMC often pick up the phone to the MDU after being asked to act as a witness for a colleague who is under investigation. Many are unfamiliar with disciplinary processes by regulatory bodies, and are understandably nervous of being involved.
Thankfully, our medico-legal advisers are on hand to guide you through the process if you ever need their help. Here are some common questions asked - and answered.
Why have I been contacted?
If a colleague is under investigation and you were involved in the events leading up to it, you may be asked to provide evidence about what happened. For example, if a patient made a complaint about clinical care, and you were present or involved, you might be asked to describe what happened.
You could also be asked to provide background information about usual practices, policies or procedures at that hospital or practice, even if you were not present for the actual incident. In this instance you would be acting as a witness of fact.
Another common scenario is a request (usually from your colleagues defence team) to provide a testimonial for a colleague under investigation. You would be asked to describe how well you knew the colleague and under what circumstances, and provide comments about their character, such as their honesty, communication skills, clinical competence, compassion. This would be acting as a character witness.
Both of these situations are distinct from being instructed by solicitors to act as independent expert witnesses for regulatory proceedings.
Who could contact me?
Any of the regulatory bodies listed below could request witness statements to help with their investigations.
- General Medical Council (GMC) - doctors
- Nursing and Midwifery Council (NMC) - nurses and midwives
- Health and Care Professions Council (HCPC) - 15 different professionals including paramedics, physiotherapists, radiographers, speech and language therapists, social workers, dieticians, podiatrists and occupational therapists.
- General Chiropractic Council (GCC) - chiropractors
- General Osteopathic Council (GOsC) - osteopaths
- General Pharmaceutical Council (GPC) - pharmacists
- General Optical Council (GOC) - opticians and optometrists
- General Dental Council (GDC) - all dental professionals.
You could be contacted by a member of staff or solicitor acting for the regulatory body, or by a solicitor acting for the colleague under investigation. If the colleague is unrepresented, they might contact you themselves.
Do I have to respond?
That depends on the situation. The GMC requires doctors to co-operate with formal inquiries and complaints procedures, and offer all relevant information, while still respecting their duty of confidentiality to patients. If the regulatory body asked you to act as a factual witness, and you refused to co-operate, you could be summonsed to provide evidence, and could be vulnerable to criticism by the GMC.
However, there is no obligation to provide a testimonial for a colleague, and it is unlikely that a doctor would wish to raise a testimonial from a reluctant colleague.
What should my statement include?
Whoever requests the statement (usually a solicitor) will explain what's needed. Whether you are a factual witness or a character witness, you must ensure that your evidence is factually correct and not misleading in any way. The GMC makes clear in Good medical practice that you must take reasonable steps to check the information, and you must not deliberately leave out relevant information. You must also make clear the limits of your competence and knowledge.
Remember, your duty is to the court and you have a duty to act independently and to be honest, trustworthy, objective and impartial. You must not allow your views about a person to affect the evidence or advice you give.
You may well be asked to give information over the phone, and a solicitor will then draft a written statement for you to sign. Occasionally, you may be asked to attend a meeting to go through your witness statement. If so, the GMC will allow you to bring a friend with you for support, but they cannot interfere. You can ask the solicitor to put their questions in writing, so you can take time to consider your response and put that in writing too. In either case, review any written statement carefully and correct any errors before signing it.
Will I have to attend a hearing?
Most cases are concluded without a hearing. When one is needed, any witness who has provided a statement could be asked to attend, but this would usually only be if absolutely necessary. Your colleague or their representative would be able to ask you questions about your statement.
If you are required to attend a hearing, you may be able to claim certain expenses.
Are there any other considerations?
It's worth remembering that your duty of confidentiality to patients means you should not disclose identifiable information about a patient to a third party without the patient's explicit consent - unless it is in the best interests of a patient who lacks capacity to consent, is required by law, or justifiable in the public interest. If you're asked for information that would involve providing information about a patient, you should ask for evidence that the patient has consented to this. If you have any concerns, get advice from the MDU.
Your statement could be disclosed to your colleague, or the complainant. If there was anything in it that could raise concerns about your own fitness to practise, then it could be shared with your own employer or regulatory body.
In most cases, acting as a witness in regulatory proceedings is straightforward, and is important to help ensure a fair outcome. If you have any concerns about providing a witness statement, discuss these with a medico-legal adviser at the MDU - we're here to help.
Dr Beverley Ward
Beverley is a former GP and has been a medico-legal adviser at the MDU since 2008. She provides advice and assistance to members of all specialties on ethical and legal matters arising from their care of patients.
See more by Dr Beverley Ward