Fitness to Practise & Freedom of Speech

Jul 1, 2025

On instructions from the Medical Defense Society, we recently concluded the successful defence of a GP and Medical Defense Society member in fitness to practise proceedings before the General Medical Council (“GMC”).

Background 

Dr A is an experienced GP and partner in a GP practice in England.  She is also an avid user of social media.  Since the outbreak of the Gaza War in 2023, Dr A has frequently posted about this topic.  Her postings range from sharing commentary from journalists such as Owen Jones of the Guardian, to expressing solidarity with US students sanctioned for pro-Palestinian protests, to condemning Israel’s actions and using hashtags including #GazaGenocide #GazaHolocaust and #CeasfireNow.  On a number of occasions, Dr A has described Israel’s actions in Gaza as “slaughter” and “reminiscent of Nazi Germany”.

A complaint was submitted to the GMC alleging that Dr A’s social media posts were in breach of the duties of a doctor registered with the GMC, due to being antisemitic and offensive.  The complaint further alleged that Dr A’s actions were potentially in breach of Sections 5 and 18 of the Public Order Act 1986.  These provisions relate to causing harassment, alarm or distress and stirring up racial hatred.  The complaint asked the GMC to “take urgent action” in respect of Dr A.

In response to this complaint, the GMC opened a fitness to practise investigation into Dr A and notified her of this, following which Dr A immediately contacted Medical Defense Society to seek assistance.

GMC Guidance

The GMC publishes a range of material which is relevant to Dr A’s situation.  For example, the GMC’s core guidance, Good Medical Practice, says:

“You must follow the law, our guidance on professional standards, and other regulations relevant to your work”.

“You must not abuse, discriminate against, bully, or harass anyone based on their personal characteristics, or for any other reason.  By ‘personal characteristics’ we mean someone’s appearance, lifestyle, culture, their social or economic status, or any of the characteristics protected by legislation – age, disability, gender reassignment, race, marriage and civil partnership, pregnancy and maternity, religion or belief, sex and sexual orientation”.

“You must not express your personal beliefs (including political, religious and moral beliefs) to patients in ways that exploit their vulnerability or could reasonably cause them distress”.

The GMC’s supplemental guidance Using Social Media as a Medical Professional also says:

“The standards expected of you as a medical professional do not change because you are communicating through social media, rather than face to face or through other methods of communication”.

“How you behave when using social media matters.  Medical professionals, like everyone else, have rights to freedom of belief, privacy, and expression.  But exercising these rights when using social media as a medical professional has to be balanced with the possible impact on other people’s rights and interests”.

It is important to note, however, that although every doctor has a responsibility to be familiar with Good Medical Practice and to meet the professional standards set by the GMC, Good Medical Practice is not a set of rules and it does not cover every possible scenario which may arise in a doctor’s life.

Meeting with Dr A

Following our instruction, we contacted Dr A within 24 hours and then met with her to provide reassurance and to discuss the GMC complaint and Dr A’s thoughts on it.  We explained to Dr A that the GMC could not determine the allegations of criminal law breaches made against her (which would be a matter for the Police), but would consider her alleged actions by reference to GMC standards and the legal concept of fitness to practise.

Dr A reported feeling extremely upset by the GMC process, which is very common.  In a recent survey of doctors investigated by the GMC, 91% reported that their case triggered stress and anxiety, with 31% experiencing suicidal ideation.

Despite her distress, Dr A also felt strongly that she had not done anything wrong and she believed that the GMC process was being used to inappropriately discourage legitimate criticism.

Having reviewed all of Dr A’s social media posts cited in the GMC complaint, we advised that we felt her actions were defensible and this was not a case where Dr A would be best served by demonstrating remorse, insight and remediation.  We agreed with Dr A that we would draft a response to the GMC complaint for her consideration and that this response would deny any wrongdoing or impairment of her fitness to practise.

Human Rights Act Entitlements

In our view, the GMC’s guidance should include greater reference to doctors’ Human Rights Act entitlements, in particular Article 8 (Right to respect for private and family life) and Article 10 (Right to freedom of expression).

The starting position is that, under the Human Rights Act:

• Everyone has the right to freedom of expression.  This includes freedom to hold opinions and to receive and impart information and ideas.  A person’s rights under Article 10 specifically include the right to express opinions that offend, shock or disturb others.
• Everyone has the right to respect for their private and family life, home and correspondence.
• Postings on social media outside a work context (as was the case here; Dr A’s social media accounts are personal accounts) specifically attract the protections of Article 8 and Article 10.

Regrettably, these rights are barely mentioned within the current versions of GMC guidance.

Response to GMC

The submission to the GMC which we prepared on behalf of Dr A asserted that:

• Nothing stated by Dr A was in fact antisemitic or capable of amounting to hate speech.
• Dr A was profoundly shocked and saddened by the extent of the human suffering in Gaza, and believed it was important to raise awareness of this suffering.
• Dr A holds legitimate concerns about the Israeli government’s actions in Gaza. The Employment Tribunal has held that anti-Zionist beliefs (distinct from antisemitic beliefs) qualify as protected beliefs pursuant to the Equality Act 2010.
• The GMC had no lawful basis on which to interfere with Dr A’s Human Rights Act entitlements. The test for doing so, as affirmed in the recent High Court case of Adil v General Medical Council [2023] was not made out in Dr A’s case.
• If Dr A’s case was referred forward to a full fitness to practise hearing, there was no realistic prospect of a finding that her fitness to practise is impaired.

 Outcome

The GMC’s fitness to practise investigation into Dr A was closed with no action, allowing Dr A to put this matter behind her and continue enjoying her use of social media.

Learning Points

It is important for doctors to be familiar with the GMC’s published guidance mentioned above – Good Medical Practice and Using Social Media as a Medical Professional – and to adhere to it.

However, doctors should not be misled into believing that the GMC’s guidance is the only relevant or authoritative source of information regarding their expression of beliefs.

Doctors’ Human Rights Act entitlements are powerful and there are limited grounds on which the GMC can interfere with these entitlements.  Doctors, like all citizens, have the right to campaign or speak up about issues of importance to them.

Being the subject of a GMC investigation is often very upsetting.  In addition to contacting your medical defence organisation without delay, it’s important to access wellbeing support.  Some excellent, free sources of this include Practitioner Health, Frontline19 and The Doctor Support Service.

Links:

• Practitioner Health https://tinyurl.com/a5uw2nhv
• Frontline19 https://tinyurl.com/93km8f7k
• The Doctor Support Service https://tinyurl.com/45tmp2em

Author: Andrea James, Partner – Professional Discipline & Healthcare Regulatory Specialist, Keystone Law

This case study is presented for informational and educational purposes only. The views expressed by the individual involved do not represent the views or positions of the Medical Defense Society. Medical Defense Society remains neutral on all matters of political or personal belief and is committed solely to providing fair, expert medico-legal support to its members.

Reported CQC failures impact on GP practices

Feb 1, 2025

GPs will have been concerned to read that an independent review of the Care Quality Commission (CQC), led by Dr Penny Dash, identified ‘significant internal failings’ that hinder the regulator’s ability to effectively judge how health and social care services are performing.

As GPs strive to maintain a high standard of service for their patients, they need to know that their efforts are fairly and consistently judged by the CQC. They would also want to understand how the CQC’s ratings are generated so that improvements to care can be made where necessary.

Yet, the report’s findings suggest that GP practices may be impacted by inconsistencies in CQC ratings, opaque ratings calculations, and infrequent inspections performed by teams without sufficient clinical expertise.

Overall report findings

Dr Penny Dash, chair of the North West London Integrated Care Board, began her review of CQC in May 2024. In the course of this, she spoke with around 300 people in total, from within the CQC, the services it regulates, and from a range of patient and user groups.

However, despite these concerns, she emphasised that the people she spoke to recognised the need for a ‘strong, credible and effective regulator’, and that CQC personnel were generally professional and dedicated to their work.

What were the key issues?

Remarkably, Dr Dash found that CQC failures were having a direct impact on the activity of health and social care providers, impeding their capacity and capability to deliver services and implement improvements.

Ten key issues were revealed:

1. Poor operational performance: A declining level of inspections, leading to a backlog in new registrations, delays in re-inspections, and an increasing age of CQC ratings.
2. Significant challenges with the provider portal and regulatory platform: Problems with new IT systems, installed in 2021, hindered roll out of the ‘single assessment framework’ (SAF) and induced frustration for providers and CQC staff alike.
3. Delays in producing reports and poor-quality reports: These issues hampered users’ ability to access information, while impacting on the credibility and utility of assessments.
4. Loss of credibility within the health and care sectors due to the loss of sector expertise and wider restructuring, resulting in lost opportunities for improvement: After internal restructuring in 2023, operational staff moved from specific sectors into integrated teams, leading to loss of expertise as well as loss of relationships between CQC and providers.
5. Concerns around the SAF and its application: issues include poor communication about the assessments and ratings categories, insufficient attention to the effectiveness of care and outcomes, and no reference to the efficient and economic delivery of care. There is also little acknowledgement of the challenges in balancing risk and ensuring high-quality care across an organisation.
6. Lack of clarity and concerns regarding how ratings are calculated: overall ratings calculations may include aggregate outcomes from inspections over several years, and providers do not understand how the ratings are generated.
7. CQC’s assessment of local authority Care Act duties could be improved.
8. Concerns about Integrated Care System (ICS) assessments, which are in the early stages of development.
9. CQC could do more to support improvements in quality: for example, by sharing best practice and innovative approaches to care delivery.
10. There are opportunities to improve the sponsorship relationship between CQC and the Department of Health and Social Care (DHSC).

How is this impacting on GP practices?

Like all providers of regulated healthcare and adult social care services in England, GP practices must register with CQC and undergo inspections, with ratings assigned following the assessments.

The CQC’s inadequate performance was reported to be negatively impacting GP providers in several ways, including: a ‘lack of consistency’ in assessments across large GP practice groups; reliance on unrepresentative GP patient data; lack of transparency in how ratings are decided; as well as delays and IT problems.

In addition, Dr Dash concluded that a lack of relevant expertise among CQC’s senior leaders and GP practice inspection teams was causing providers to lose trust in the outcomes of reviews.

The recommendations

Dr Dash stressed the importance of a high-performing regulator for the health and care sectors, and a need to restore confidence in the CQC. Among her recommendations were:

• Rapidly improve operational performance, IT systems and report quality
• Rebuild expertise and relationships with providers
• Make the SAF fit for purpose
• Clarify how ratings are calculated

Following the interim report, Dr Dash commented, ‘Our ultimate goal is to build a robust, effective regulator that can support a sustainable and high-performing NHS and social care system which the general public deserves.’

First steps towards improvements

Following Dr Dash’s interim report, the CQC accepted the recommendations in full, committing to take rapid action to rebuild trust and performance with the ‘right structure, processes and technology’ in place.

Wes Streeting was reportedly ‘stunned’ by the extent of CQC’s failings in the report. He promised action, including: the appointment of Professor Sir Mike Richards, former Chief Inspector of Hospitals, to review the assessment framework; increased transparency around CQC ratings; greater oversight; and a further review of patient safety organisations, to be published in early 2025.

The CQC’s internal review by Professor Sir Mike Richards examined the assessment framework and its implementation. He concluded that the organisation needs a ‘fundamental reset’ to meet its objectives, with the recommendations including:

• Revert to the previous organisational structure
• Simplify the assessment framework and abandon the concept of a ‘single assessment framework’ for all the diverse services that CQC regulates
• Provide immediate feedback at the end of inspections, particularly for serious adverse findings
• Urgently review staffing
• Consider whether changes to the ‘one-word ratings’ could be beneficial.

In October, the CQC announced that Sir Julian Hartley will become its new Chief Executive. He said, ‘I will do my utmost to bring all I have learned to serve people who use services and to work with CQC staff and with providers to deliver high quality regulation which drives improvement across the health and care system.’

Please contact the expert team at Medical Defense Society if you have any concerns about CQC reviews and ratings.

New RCGP guidance sets clear limits on Physician Associate roles

Jan 1, 2025

Both the Royal College of GPs (RCGP) and the British Medical Association (BMA) recently voted to phase out Physician Associate (PA) roles on grounds of patient safety. However, around 2,000 PAs already work in general practice.

In recognition of this reality and the need for clarity around PA roles, the RCGP issued new guidance in October, covering induction and preceptorship, supervision and the scope of practice of PAs. It sets a ‘deliberately narrow’ scope of practice to protect patient safety and to reflect the limited evidence base.

Echoing previous BMA recommendations published in March, the RCGP guidance makes clear that PAs should not see undifferentiated patients. With the General Medical Council (GMC) preparing to regulate PAs from December, it is essential that GPs, practices and PAs are familiar with the guidelines and maintain a clear distinction between GP and PA roles.

PA preceptorship, induction and supervision

The RCGP guidance defines PAs as ‘dependent healthcare professionals’ working in the multidisciplinary team with ‘supervision from a named GP Clinical Supervisor’. The GP Clinical Supervisor oversees the work of the PA and retains overall clinical responsibility for the patients the PA sees.

The guidance says that PAs should also have an Educational Supervisor to oversee educational and professional development during a preceptorship period, normally 12 months long. A learning needs assessment, performed by both supervisors together with the PA, will form the basis of a job plan, setting out the PA’s role.

Furthermore, PAs must have a minimum induction period of two weeks, full-time equivalent, when they begin a new role. During this time, the practice should ensure that the PA and other staff understand the PA role, lines of accountability, and how the PA should be introduced to patients – transparency is key.

Job plans must include protected time for daily supervision and regular review meetings, with frequency dependent on the experience and competence of the PA.

What can PAs do?

Despite the restrictions, the RCGP guidance sets out responsibilities that are in scope for a PA. For example, PAs can be the first point of contact for patients over 16 years with suspected minor conditions that have clear clinical pathways and escalation processes. The RCGP proposes starting with the seven common minor illnesses in the Pharmacy First programme.

While PAs can ‘take a history, complete a physical examination, and construct an appropriate diagnostic and management plan’, they must share the plan and all patient notes for approval by their GP Clinical Supervisor.

• PAs may also perform tasks including annual NHS health checks and assisting in making referrals as agreed with a GP. They may also support or lead practice clinical audits, learning events, research and service development and other practice initiatives.
• However, there are strict limits on the PA’s role with regards to clinical procedures, tests, prescriptions, and patient forms. Only PAs with further training may take on a wider scope of practice, if agreed with their GP Clinical Supervisor, such as providing contraceptive advice, vaccinations, performing certain clinical tests and reviews, and additional administrative tasks.

PAs must follow clinical protocols

PAs must always use the GP practice clinical guidelines and protocols, and document all patient encounters, including advice given by the GP Clinical Supervisor. Practices should ensure they have a protocol for safe prescribing for patients seen by the PA.

Importantly, PAs must always introduce themselves to the patient and make it clear in communications with patients and other staff that they are not a doctor. Practices must also inform team members about the PA role and ensure that patients are told when they are seen by a PA.

PAs have a limited scope of practice and must not see undifferentiated patients

The GP Clinical Supervisor will determine the PA’s scope of practice at the start of their employment, based on their clinical competencies, and the PA must always work within this, and within the scope of practice of their GP Clinical Supervisor.

In particular, the RCGP guidance states that ‘PAs must not see patients who have not been triaged by a GP and only undertake work delegated to them by, and agreed with, their GP Clinical Supervisor’.

Notably, this contrasts with wording in the updated network contract directed enhanced service  published in September, which indicates that PAs can see undifferentiated patients if their ‘named GP supervisor is satisfied that adequate supervision, supporting governance and systems are in place’.

The RCGP guidance provides a list of patients that should not be triaged to PAs, including those with potentially serious, complex or rare conditions, suspected mental illness, pregnant or post-natal women, and children under 16.

GMC to regulate PA roles from December

From 13 December 2024, the GMC will begin to regulate PAs, setting expected standards of practice, education and training.

Although PAs will not be legally required to register until December 2026, they will be encouraged to apply as soon as possible. PAs on existing voluntary registers will be invited to sign up by the end of January 2025 and employers will be asked to promote this. Once registered, PAs will be required to follow ‘Good medical practice’ and participate in annual appraisals to support future revalidation.

GP practice responsibilities

GP practices should check that PAs are listed on the Physician Associate Managed Voluntary Register or, once GMC regulation begins, the GMC’s Register of PAs. Further advice on governance considerations is summarised in the RCGP guidance, including advice from the GMC and from NHS Resolution for doctors who supervise PAs.

Importantly, although RCGP cannot enforce its new rules, employers are responsible for handling of PA contracts, and the guidance may be ‘taken into account by NHS Resolution and medical defence organisations in a case of alleged negligence or clinical or professional mistakes’.

Employers must ensure that adequate professional indemnity insurance is in place for the PA. If you would like further advice about this, or have other questions about PA roles, please contact us at Medical Defense Society.

2024 RCGP annual conference and Labour’s plans for the NHS

Nov 1, 2024

Medical Defense Society was pleased to sponsor and attend the Royal College of General Practitioners (RCGP) Annual Conference and Exhibition 2024 on 3–4 October at the ACC Liverpool. We heard from Wes Streeting, who addressed delegates in a keynote speech – the first secretary of state to do so in seven years.

He acknowledged the difficulties experienced by GPs in managing ‘increasingly complex care’ without the resources, infrastructure and authority required, saying: ‘Patients are frustrated they can’t see you. You’re frustrated you can’t meet their demands.’

His remarks reflect the findings of the Independent Investigation of the NHS in England, published on 12 September. Led by surgeon and former health minister, Professor Lord Darzi, the review was commissioned by the government to assess the current state of the NHS.

The Darzi review: NHS in ‘serious trouble’

In agreement with Mr Streeting, who declared the NHS was ‘broken’ on his first day as Secretary of State for Health and Social Care, Darzi found the NHS to be in a ‘critical condition’.

He said that while NHS staff are ‘doing their best to cope with the enormous challenges’, patient satisfaction has been eroded by increasingly long waiting times across the NHS, for GP services, surgery, cancer care, A&E, and mental health services.

He concluded that key drivers of the deteriorating service were: austerity in funding; the pandemic; lack of patient voice and staff engagement; and management structures and systems. In addition, the 25% cut in public health grants to local authorities since 2015 contributed to the worsening state of the nation’s physical and mental health, causing surging demand for NHS services.

Darzi judged that NHS money is not being spent where it should be: less should be spent in hospitals while community services should receive a greater share. In hospitals, staff numbers rose by 17% between 2019 and 2023. Meanwhile, in primary care, although GPs now see more patients than ever, the number of fully qualified GPs is falling and patients are struggling to get appointments.

Wes Streeting’s plans for general practice

The findings from the Darzi review will now inform the ten-year health plan that is expected in spring 2025. At the RCGP annual conference, Mr Streeting explained that the plan will shift the focus of healthcare in three ways – “from hospital to community, analog to digital and sickness to prevention”, with general practice playing a core role.

Reinforcing Labour’s commitment to improving continuity of care, he said: ‘it will be at the heart of this government’s plan to reimagine the NHS as much as a neighbourhood health service as a national health service.’

He also promised to ’bulldoze bureaucracy’ in general practice. This will include avoiding unnecessary GP appointments for referrals. He cited the example of a pilot to directly refer women with a worrying lump to a breast clinic via 111 Online, starting from November.

What is needed to ‘fix’ the NHS?

The Darzi review strengthened the case for radical reforms in the NHS. Labour now has the responsibility for trying to fix the problems, and GPs must await details of how the government plans to do this. While Mr Streeting committed at the conference to ‘growing the proportion of the NHS budget that goes into primary care’, he cautioned: ‘I can’t turn around 14 years of underinvestment in a single budget or even a single spending review, but we can start to move in the right direction.’

Siva Anandaciva, Chief Analyst at The King’s Fund, said: ‘There have been some reports that the NHS will be at the centre of the upcoming Budget, but against a backdrop of constrained public finances, the proof will be in the pudding of how far the government is willing to go to support health and care services ahead of next year’s multi-year spending review.’

Of note, the British Medical Association (BMA) has proposed terms for negotiations on future contract reform. The ‘heads of terms’ document is published as part of the BMA’s ‘Patients first’ vision for general practice, intended to be a ‘framework for future negotiations’ in line with Labour’s manifesto commitments and the Darzi review.

The aim is for a major new contract to be implemented by April 2028, aiming to fully resource general practice, enable continuity of care, and rebuild the workforce.

‘Stand down collective action’

Mr Streeting emphasized the need for government and GPs to work together and called on GPs to ‘stand down collective action’ as it would ‘punish patients’ and hinder recovery.

He wrapped up his speech by urging, ‘I need every part of the NHS to pull together as one team, with one purpose. To be the generation that took the NHS from the worst crisis in its history, got it back on its feet, and made it fit for the future. That’s the mission of this government, and I’m confident that together we will rise to it.’

However, in response, GP leaders in the BMA reiterated that general practice must take action to limit the unsustainable pressure. They called for an increase in core general practice funding from 2025/26 as a first step towards ending collective action.

Other news from the RCGP conference

Additional roles reimbursement scheme (ARRS) funding for GP jobs to continue beyond March:

An emergency fund of £82m is now available through the ARRS to enable recruitment of newly qualified GPs in 2024/25, from 1 October 2024 to the end of March 2025.

Following RCGP calls for a ‘public commitment’ that these jobs would not end in March, the college chair, Professor Kamila Hawthorne, questioned Wes Streeting on this point at the conference. He responded with a promise that the funding would continue beyond March, saying ‘that’s the kind of stability and the certainty that people need now, both in terms of employing people, but also taking up jobs.’

Despite this promise, GPs remain concerned that ARRS funding for GP roles is insufficient. There is also dismay that the overall ARRS budget uplift this year is limited to 2%, meaning that primary care networks may struggle to afford the 5.5% pay rise awarded to ARRS staff from 1 October.

Single register of GPs and specialist doctors:

For years, the RCGP has been calling for the GP and specialist registers to be merged into a single register, to give GPs ‘parity of esteem’ within the NHS and formally recognise their expertise.

Mr Streeting confirmed at the conference that he is ‘committed to the creation of a single register of GPs and specialist doctors, and this government will legislate to give the GMC the power to do it.’ He added, ‘It’s symbolic, but it’s also meaningful. It reflects the partnership I want to build with this profession.’

New RCGP guidance on Physician Associates (PAs) roles: Induction, preceptorship, supervision and scope

Since the RCGP conference, the college has published new guidance on PA roles in general practice, setting a ‘deliberately narrow’ scope of practice to maintain patient safety and reflecting the limited evidence base.

• Induction, preceptorship, and supervision: The guidance includes that all PAs should have a minimum induction period of two weeks, full-time equivalent when they begin a new role. Furthermore, each PA must have a named GP clinical supervisor and, during a ‘preceptorship period’ – normally 12 months – also a GP educational supervisor.
• Scope: The guidance states that ‘PAs must not see patients who have not been triaged by a GP and only undertake work delegated to them by, and agreed with, their GP clinical supervisor.’ It also provides a list of patients who should not be seen by PAs, including those with potentially serious or complex conditions.

While PAs can take a history, complete a physical examination, and construct an appropriate diagnostic and management plan, they must share the plan with their GP supervisor. There are also strict limits on the PAs’ role with regards to clinical procedures, tests, prescriptions, and patient forms.

• Employers are responsible: Importantly, although RCGP cannot enforce the rules, employers are responsible for the appropriate handling of PA contracts, and the guidance may be ‘taken into account by NHS Resolution and medical defence organisations in a case of alleged negligence or clinical or professional mistakes’. Employers must ensure that adequate professional indemnity insurance is in place for the PA.

Reports of Care Quality Commission (CQC) failings

Finally, Medical Defense Society members who rely on CQC registration will no doubt be interested in the reported failings of the organisation. The full report by Dr Penelope Dash has now been published, and will be the focus of our next article.

If you would like advice about any of the topics discussed here – including collective action, ARRS funding, PA roles, and CQC inspections – please get in touch at Medical Defense Society.