Articles Professional Discipline 23rd Mar 2015

Say You Are Sorry, And Mean It – The Role Of Apologies In The New GMC Indicative Sanctions Guidance

Good medical practice requires a doctor to be open and honest with a patient where things go wrong. If the patient has suffered harm or distress as a result of their actions, a doctor should apologise. Precisely how and where that apology fits into the disciplinary process is currently under review.

On 25 February 2015 the GMC published the result of its consultation into new indicative sanctions guidance for the fitness to practise panels run by the Medical Practitioners Tribunal Service (MPTS). The consultation, launched in August 2014, included consideration of the role of insight and apologies. In particular, the GMC proposed to allow fitness to practise panels to force apologies from doctors who have caused harm to patients.

Over 2000 people, including doctors, patients and health professionals responded to the consultation on the indicative sanctions guidance. There was not, the GMC reported, consensus of opinion on whether or not there should be forced apologies. In fact, 53% of respondents were opposed to forced apologies.

The benefit, for those in favour, would be that by forcing doctors to apologise, the effect may be to encourage others to give apologies more freely and at an earlier stage in the process.

The concept of forced apologies drew concern and surprise from different quarters. The Medical Defence Union response to the consultation noted, “it would not achieve anything useful. Unless an apology is freely given and the doctor means it, it has no purpose.” The MDU proposed instead “the panel would be better advised to consider why the doctor won’t apologise and what, if anything, that demonstrates about his or her regret and insight into whatever went wrong.”

The Professional Standards Authority’s response to the consultation was similarly sceptical and expressed doubt about whether an apology would hold much value for a recipient so long after the event; and particularly when they will probably know that the doctor was forced to apologise.

Plan B, consulted upon by the GMC, was that the sanctions guidance should include detailed guidance on the factors that indicate whether a doctor has insight, including whether or not they apologise.

The MDU expressed surprise that guidance on insight was considered to be necessary. Panels, they say, have demonstrated for some considerable time that they are capable of assessing a doctor’s insight.

The PSA disagreed and welcomed guidance on the factors that could indicate whether or not a doctor lacks insight. The PSA noticed that a panel’s evaluation of the level of a doctor’s insight and assessment of its relevance are often criticised in their reviews of GMC panel decisions.

Both the MDU and the PSA were in agreement that whether or not a person had apologised was, alone, not the answer. Insight means accepting what you did was wrong, understanding why what you did was wrong and how you would avoid it happening again in the future. Making an apology a factor for determining sanction may undermine the weight, which can be given to any such apology; people may apologise, or be seen to apologise, solely to achieve a more lenient sanction.

The BMA was concerned about the effect on a doctor’s Article 6 rights if they become afraid to fight their case out of fear that any failure to apologise would lead them to be held to be lacking in insight and thus cause them to be more severely sanctioned.

The General Practitioner Council vocally objected to this increased focus on apologies and what it saw as a commensurate increase in indirect pressure to apologise. The deputy chairman Dr Richard Vautrey told GP Online that “Clearly, if a doctor behaves inappropriately in a situation and tries to cover up their mistakes and doesn’t admit them to the patient in an appropriate way, then that’s something that becomes indefensible…What we want to avoid is doctors feeling that they have to do things because of legal structures or the fear of performance management processes, which then undermines the way that they care for individual patients.”

Reviewing the responses to the consultation, the GMC Chief Executive Niall Dickson has recognised the results and acknowledged that forced apologies may be seen as less genuine. He did believe, however, the consultation demonstrated the importance of apologising to patients when things go wrong. Despite the reservations described above, the GMC found that there was strong support for the failure to apologise to be highlighted as a factor, which may affect sanction.

It is expected that this will be incorporated into the new sanctions guidance, which will be presented to Council for approval on 23 April 2015. It will be published in August 2015.

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