Should an MPT grant or refuse a VE application?

35. Relevant public protection considerations include: 
• patient safety  
• public confidence  
• maintenance of professional standards. 

Patient safety

36. In principle, patients will be kept safe by the MPT granting VE as the doctor will be erased from the medical register and no longer able to practise medicine in the UK, or anywhere else requiring GMC registration. Therefore, any risk to patients in those jurisdictions is removed. 
    
    
37. However, patients elsewhere may be placed at risk if a doctor who is not fit to practise is able to practise overseas. Where there is information that indicates the doctor is already working outside the UK, or there is evidence available that suggests they are likely to work outside the UK, this will weigh against granting VE before any facts decision is made.  
    
    
38. This is because if the doctor continues to practise in a jurisdiction that does not require them to hold GMC registration, there may still be a risk to patients and the public; both those resident overseas and UK patients who have travelled overseas for treatment. In these instances, it is important the fitness to practise process is allowed to proceed so an outcome on the facts can be reached and any decision regarding a doctor’s fitness to practise can be made and published. 

Public confidence and maintenance of professional standards

39. The MPT needs to consider whether it would undermine public confidence and/or the maintenance of professional standards if the doctor was allowed to leave the register before the conclusion of the fitness to practise proceedings. Where it would, this weighs against granting VE. 
    
    
40. Relevant considerations include:  
• the seriousness of the allegation, and 
• the extent to which the allegation has been reviewed by other public/adjudicatory bodies and the outcome.   

The seriousness of the allegation 

41. The MPT will first need to reach a view on the seriousness of the allegation, which takes into account the nature of the allegation, by applying the guidance in the section Step 2b: Decide where on the spectrum of seriousness the allegation lies in the Guidance for MPTS tribunals (Doctors). 
    
    
42. Public confidence in the medical profession is less likely to be damaged by granting VE where the allegation falls at the lower end of the spectrum of seriousness on the basis the nature of the allegation means it is more likely to be easily remediable. This often includes where the allegation relates solely to a doctor’s performance, the impact of a health condition or knowledge of English language. Generally for these types of allegation, the MPT can grant VE, even where the doctor has indicated they may seek to return to practice in the future. 
    
    
43. However, where the allegation falls at the higher end of the spectrum of seriousness or resulted in significant public concern, the MPT should consider, along with all other available evidence and information, whether a decision on impairment may be needed to maintain public confidence. This is because, in these circumstances, allowing the doctor to be erased from the register before an impairment decision has been made may undermine public confidence and/or the maintenance of professional standards. 
    
    
44. In cases where a VE application is being considered after the MPT has reached a decision on impairment, the MPT should refer to their view on impairment ie whether the doctor poses any current and ongoing risk to public protection requiring restrictive action in response as this takes into account their assessment of seriousness. 
    
    
45. Where the MPT has decided the doctor’s fitness to practise is not impaired, VE can usually be granted. However, the MPT may wish to balance a decision to grant VE against whether they consider a warning should first be imposed to maintain public confidence or uphold professional standards. This is because once the MPT has granted VE they cannot go on to impose a warning in cases where this would otherwise have been appropriate. 
    
    
46. In cases where the MPT have decided the doctor’s fitness to practise is impaired and the doctor poses a low or medium level of risk to public protection, VE can usually be granted. However, where the MPT decides the doctor’s fitness to practise is impaired on the basis the doctor poses a high level of risk to public protection, the MPT should consider if a decision on sanction may be needed to maintain public confidence.  

The extent to which the allegation has been considered by other public  adjudicatory bodies and the outcome

47. Where there has been consideration of the circumstances giving rise to the allegation by another public or adjudicatory body and the outcome is in the public domain, an argument that granting VE would harm public confidence or undermine professional standards may be less compelling. This includes consideration by another healthcare regulator.  
    
    
48. However, where regulatory proceedings have been recommended by another body, there may be a reasonable public expectation that the fitness to practise process be allowed to run its course. Granting VE prior to the MPT hearing concluding may therefore have the impact of undermining public confidence. 

49. When considering if voluntary erasure (VE) is appropriate, the medical practitioners tribunal (MPT) should be mindful that any current and ongoing risk the doctor poses to public protection might still exist if they later apply for restoration to the medical register. 
    
    
50. Restoration can only be granted where the individual is assessed as being fit to practise on an unrestricted basis. If at the time a doctor is erased from the medical register there is an unresolved concern about their fitness to practise, this matter will need to be considered when deciding any restoration application.  
    
    
51. This includes where a decision on facts had been made but a decision on impairment had not at the time VE was granted, or where a decision had been made that the doctor’s fitness to practise was impaired but no sanction was imposed as VE was granted. It may also include, where undertakings had been in place at the time VE was granted. 
    
    
52. The MPT should therefore assess the risk associated with a restoration application being made when deciding whether to grant or refuse VE. Where any risk is significant and cannot be appropriately mitigated, this will weigh against granting VE.  
    
    
53. The overall risk associated with a restoration application should be assessed by considering: 
• the likelihood of the doctor seeking restoration, and 
• the GMC’s ability to revive an unresolved concern.  

54. Where there is a low likelihood of the doctor seeking restoration, there is less likely to be a risk associated with a future restoration application. In these circumstances, the GMC’s ability to revive an unresolved concern is less relevant and so this will usually weigh in favour of granting VE. 
    
    
55. However, where the MPT considers there is more than a low likelihood of the doctor seeking restoration to the register, the GMC’s ability to revive an unresolved concern is key to the assessment of any risk associated with a future application for restoration.  
    
    
56. Where a doctor may apply for restoration in the future and, should they do so, the MPT consider the GMC will have obvious difficulties reviving an unresolved concern or case, the risk arising from a future restoration application will be significant. This will weigh against granting VE, unless there are exceptional circumstances that mean it would still be appropriate for the MPT to grant VE.  

The likelihood of the doctor seeking restoration 

57. The MPT must assess the likelihood of the doctor seeking restoration based on the information and evidence available to them about the case and the individual circumstances of the doctor. This may include:  
• the doctor’s health, and 
• the doctor’s careers intentions. 

The doctor’s health

58. If a doctor provides objective evidence that they have a health condition which is serious and has a low likelihood of recovery, this is likely to be a strong indicator that they are unlikely to seek restoration to the register in the future and so the risk associated with a future application is likely to be low. This will weigh towards granting VE. 

The doctor’s career intentions  

59. Where there is objective evidence that a doctor has fully retired from medical practise or is pursuing an alternative career, the MPT may conclude the likelihood of the doctor applying for restoration to the register is low. Objective evidence that a doctor does not intend to practise medicine in the future could include removing themselves from a performers list or resigning from a practice partnership.
    
    
60. In some cases, doctors may demonstrate genuine insight into allegations about their fitness to practise and express an intention to pursue an alternative career path. Evidence of that intention may include paperwork confirming enrolment in alternative training or academic study. However, caution should be applied where the doctor is at an early or mid- point in their career, where the prospect of wanting to return to work as a doctor is significantly higher.
    
    
61. Where there is evidence that suggests the doctor intends to return to practice after a short break, this will indicate that the likelihood of them applying for restoration is high and weigh towards refusing VE. 
    
    
62. When considering the likelihood of the doctor seeking restoration to the register, the MPT should also consider the length of time since the doctor last practised. In general, a doctor is less likely to apply for restoration if they have not worked for a significant period. When assessing their work history, time spent practising overseas should be treated with equal weight to that of practising in the UK. Where there is evidence that a doctor intends to continue to practise overseas, this may indicate that the likelihood of applying for restoration in the future may be higher. 
    
    
63. In cases where there is evidence to suggest that a doctor’s intention to cease medical practice is not genuine, the MPT may treat this as an indication that the likelihood of them applying for restoration is high. The MPT should therefore carefully consider any available information about the doctor’s motivation for seeking VE, particularly to assess if they have applied for VE solely to avoid a sanction or otherwise circumvent the fitness to practise process.  

The GMC’s ability to revive an unresolved concern 

64. Where the GMC would be able to revive the unresolved concern should the doctor later seek restoration to the register, this may reduce or eliminate any risk arising from a future restoration application. Where revival of an unresolved concern would be possible this will weigh towards granting VE. Where the MPT has already made findings of fact, this is likely to be the case.  
    
    
65. However, where the MPT considers there will be obvious difficulties in the GMC’s ability to revive the unresolved concern, this is likely to indicate that any risk from a future application for restoration cannot be mitigated and will weigh against granting VE. This would likely only apply where a VE application is being considered before findings of fact have been made. 
    
    
66. Where VE is being considered before findings of fact, the MPT should be satisfied that steps have been, or can be, taken to safeguard against any risk that evidence will not later be available, will be destroyed, or its value will be degraded over time. They should also assess how feasible it would be for the GMC to revive the unresolved concern in the future by considering the following evidential matters:  
• any criminal conviction or a determination by another regulatory body that can be relied on as conclusive evidence of the offence committed or fitness to practise findings by another regulator 
• whether the doctor accepts or disputes the allegation, noting that it is possible for admissions made to be withdrawn, and 
• any new evidence that may be available at the time a restoration application is made. 

Any criminal conviction or a determination by another regulatory body 

67. Where the MPT has received a certificate of conviction or determination, this amounts to conclusive evidence of the offence committed or of the findings made about the doctor’s fitness to practise. This will mean the unresolved concern can more easily be revived in the event of a restoration application. This may indicate that the risk associated with a future restoration application is low and weigh towards granting VE.  
    
    
68. However, where the conviction or determination is of a particularly serious nature, then public confidence may be impacted if VE is granted before an impairment decision is reached in cases where it is likely that the seriousness would result in disciplinary erasure being directed. 

Whether the doctor accepts or disputes the allegation

69. Where the doctor has accepted a significant proportion of the paragraphs of the allegation or otherwise made admissions in a form that can be relied on in the future⁸, this will make it easier to revive any unresolved concern. This may indicate that the risk associated with a future restoration application is low and weigh towards granting VE. 
    
    
70. However, if a doctor disputes a significant proportion of the allegations and findings of fact are not made before they leave the register, there is a risk that the GMC will not be able to revive an unresolved concern if the doctor applies to be restored to the register in the future. This is because evidence may be lost, deteriorate or a witness’s memory may fade, or they may become uncontactable or have died.  
    
    
71. An issue with revival may also arise due to documentary evidence being destroyed, deliberately or otherwise. In these circumstances there is likely to be a risk arising from the GMC not being able to revive the allegation. This may weigh towards refusing VE. 
    
    
72. However, in cases where the MPT has received a certificate of conviction or determination, as this amounts to conclusive evidence of the offence committed or of the findings made by another regulator about the doctor’s fitness to practise, there is less likely to be a risk arising from the doctor’s denial. This may weigh towards granting VE. 

New evidence that is likely to be available at the time a restoration application is made 

73. The MPT should also consider whether the nature of the allegation means that objective evidence relevant to the assessment of the doctor’s fitness to practise can be obtained in the event of a restoration application. 
    
    
74. Where the allegation relates to a doctor’s performance, the impact of a health condition or knowledge of English language, objective evidence of their fitness to practise can usually be obtained at the time of the restoration application by the doctor undertaking a relevant assessment. This may weigh towards granting VE. 

75. In some cases, there may be exceptional circumstances which mean voluntary erasure (VE) can be granted even when there are relevant public protection considerations and/or a significant risk arising from a future restoration application which would usually mean that VE should be refused. 
    
    
76. Exceptional circumstances are, by definition, unusual, and so will rarely arise. However, this threshold may be met where there is sufficient evidence presented to the medical practitioners tribunal (MPT) that demonstrates the doctor is unable to participate in the hearing at all, whether in person or through providing instructions to a representative, due to the impact of a serious health condition that will not improve to enable the proceedings to resume at a later date or because of the impact the proceedings themselves will have on their health which cannot be mitigated in any way. 
    
    
77. When considering if there are exceptional circumstances in respect of a doctor’s health, the MPT should consider: 
• the impact of a health condition on the doctor’s ability to respond to the case at a hearing in any form 
• their likelihood of recovery, and 
• the likelihood and extent of any risk of harm to the doctor arising directly from the continuation of the hearing, including, if relevant, any risk to the doctor’s life that cannot be appropriately mitigated through the MPT adjusting its procedures or making reasonable adjustments.   

78. Evidence addressing the basis for the exceptional circumstances will usually be provided by, or on behalf of, a doctor seeking VE, although further information can be requested by the MPT if required. However, as this may require an adjournment and delay the conclusion of the hearing, the MPT should invite submissions from the parties on whether this is appropriate and proportionate, applying the guidance in the section on Adjournments in the Guidance for MPTS tribunals (Doctors). 
    
    
79. The MPT should be mindful that it is not exceptional or even unusual for those involved in fitness to practise proceedings to find them stressful, including the doctor. The MPTS has put processes in place to try and minimise that stress insofar as possible. Evidence to support exceptional circumstances should therefore indicate how the ongoing proceedings will create an exceptional impact on the doctor. 
    
    
80. Any risk of harm to the doctor should be evidenced with specific reference as to how the proceedings will exceptionally impact on the doctor and how the proceedings cannot fairly proceed with any adjustments in place.  
    
    
81. Where the MPT has been provided with objective and up to date evidence that the doctor is unable to understand or participate in the hearing due to the impact of an ongoing health condition that is unlikely to resolve or there is likely to be a significant risk of harm to the doctor arising directly from the continuation of the hearing, irrespective of whether they intend to attend the hearing, this will usually weigh in favour of granting VE at any stage as long as the hearing has commenced.  

82. This question only needs to be considered where the allegation falls at the higher end of the spectrum of seriousness and/or has resulted in significant public concern. This is because public confidence is most likely to be impacted in such cases. 
    
    
83. Generally, the level of public confidence will increase the further a hearing progresses. However, proceeding with an medical practitioners tribunal (MPT) hearing has resource implications and impacts on all those involved in the hearing, including patients, witnesses or members of the public. The MPT will therefore need to balance these considerations to decide whether the risk to public confidence is such that it is necessary for the fitness to practise process to reach its full conclusion. 
    
    
84. Usually, a decision on impairment and/or consideration of sanction will not be needed to maintain public confidence, even where the allegation falls at the higher end of the spectrum of seriousness and/or has resulted in significant public concern, provided that findings of fact have been made. This is because, once findings of fact have been made, the seriousness of the allegation will be clear and the MPT’s determination will usually be published on the MPTS website in line with the Publication and Disclosure Policy.  
    
    
85. However, in rare cases, the seriousness and/or impact of an allegation may require a decision on impairment and/or sanction to be made to maintain public confidence before VE can be granted. When reaching a view on this, the MPT should bear in mind that any decision that a doctor’s fitness to practise is impaired will be published on the register. 
    
    
86. Where the MPT concludes that a decision on impairment and/or consideration of sanction is not needed to maintain public confidence, this will weigh towards granting VE provided findings of fact have been made. However, where the MPT is of the view that a decision on impairment and/or consideration of sanction is needed to maintain public confidence, this will weigh towards refusing VE and allowing the hearing to proceed.   
    
    
87. In cases where a VE application is being considered after the MPT has reached a decision on impairment but before a decision on sanction, when deciding whether a decision on sanction is needed, the MPT should consider their view on impairment ie whether the doctor poses any current and ongoing risk to public protection requiring restrictive action in response. If the MPT has concluded that the doctor’s fitness to practise is impaired and that they pose a risk to public confidence, this may weigh towards them refusing VE and instead proceeding to consider sanction.  
    
    
88. Consideration of sanction is more likely to be needed where the likely proportionate outcome is one of disciplinary erasure.⁹ This is because following disciplinary erasure a doctor cannot apply to be restored to the register for a period of five years and upon doing so, the onus is on them to demonstrate they are now fit to practise on an unrestricted basis. Proceeding with disciplinary erasure may therefore better achieve public protection than granting VE.