Should a doctor who is the subject of a current fitness to practise complaint before the General Medical Council (GMC) be permitted to retire from the medical register on the grounds of ill health, and thereby avoid a public fitness to practise hearing?

The issue has arisen recently in the case of Dr Sabah Al-Zayyat, the consultant paediatrician prominently involved in the Baby P case. Dr Al-Zayyat gave evidence at the trial in which Baby P’s mother and others were convicted of causing his death. She had examined Baby P two days before his death of multiple injuries. Dr Al-Zayyat is currently the subject of fitness to practise misconduct allegations before the GMC’s Fitness to Practise Panel concerning her examination of Baby P, and representations she allegedly made in a subsequent application for employment in Ireland.

Dr Al-Zayyat was due to appear at a GMC fitness to practise hearing in February of this year, but in fact she had gone to Saudi Arabia shortly before the hearing commenced and did not appear. She had already been assessed by a psychiatrist as unfit to defend herself, on the basis that she was a high suicide risk and had had a mental breakdown. Upon her arrival in Saudi Arabia, she had been admitted to hospital.

After the panel decided to adjourn the case due to her absence, Dr Al-Zayyat applied to the panel to remove herself from the medical register under the GMC’s voluntary erasure process. Her application was refused and the panel determined that the fitness to practise proceedings must go ahead. Having on the next occasion heard psychiatric evidence that she was unfit to attend, the panel determined to proceed in Dr Al-Zayyat’s absence, not being satisfied that her illness was genuine and finding that her absence was voluntary and deliberate.

Last week, on 25 November, Dr Al-Zayyat successfully applied in the Administrative Court for a judicial review of the decision to proceed in her absence. Mitting J held that where a doctor was involuntarily absent, it would be unusual, and potentially unfair, to proceed. In this case, in the face of the medical evidence before the panel that the doctor did not have capacity and given the lack of evidence that the doctor’s absence was not genuine and involuntary, the decision to proceed was perverse and would be quashed. It would seem now that the proceedings may be adjourned again and Dr Al Zayyat might seek to renew her application for voluntary erasure.

The case raises the complex question of when, if ever, it is appropriate to allow a doctor facing a serious misconduct complaint, but who has genuine health problems (sometimes caused by the aftermath of the very events which are the subject of the complaint), to remove themselves from the register and avoid a public fitness to practise hearing. There is no compulsion upon any doctor to participate actively in fitness to practise proceedings, and if they do not choose to do so, the case can proceed and a decision reached. But a doctor who is unwell may nevertheless insist that they wish, when well, to defend themselves in the proceedings.

Decisions to allow voluntary erasure by a doctor who is the subject of a complaint about their conduct or performance, especially if the case is a high-profile one, are likely to be controversial. There are complex competing interests in play. The GMC has sought to put in place a rigorous process for the consideration of such applications which seeks to ensure that all the critical information about the applicant’s past is available to the decision-makers, the GMC’s case examiners or, where the application is made when fitness to practise proceedings are live, the Fitness to Practise Panel itself.

The process seeks to cover circumstances where the doctor is not yet the subject of any complaint, to the GMC or otherwise, but may be about to be and may be seeking erasure in anticipation of a referral to the GMC. The GMC requires the doctor to certify that they are not aware of any circumstances which might call their good standing into question, and also requires confirmation from former employers and other regulators. These are required to be renewed every three months if the application period extends for any reason.

The GMC’s detailed guidance on voluntary erasure applications sets out the competing interests which have to be weighed in the decision: the public interest (which includes the protection of patients and the public, the maintenance of public confidence in the medical profession and in the GMC’s regulatory process); the private interest of the person who has made any current complaint (whose views on the application may be sought as part of the process); and the 'private interests' of the applicant doctor, including their health, the likelihood of their seeking restoration to return to practice, and the genuineness of their desire to cease to be registered.

However, recent reports still demonstrate concerns about the process. The decisions to allow voluntary erasure to two consultant surgeons who were about to face fitness to practise proceedings, Owen Jeremy Gilmore and Nigel Sacks, on ill-health grounds have been criticised, notably by the Health Insurance Counter Fraud Group, which represents private medical insurers and claims such complaints should not be 'swept under the carpet'.

What is the public interest in pursuing proceedings against a doctor who is not fit to participate and who has no intention to return to practise? In reality, the public is protected by their withdrawal from practice and, should they seek restoration at a future date, the requirement that they undergo a thorough examination of past events under the GMC’s restoration procedure before they can be restored to the register. However, there is a strong argument that a full, public examination of serious complaints via the fitness to practise process is needed to ensure lessons are learned and that confidence in the GMC’s regulatory process is maintained. Clearly in key cases, these are complex balancing exercises for the decision makers.

Rosemary Rollason is head of the professional discipline and regulation department at Russell Jones & Walker