Accepting undertakings can seem daunting, but as Venessa Holt from the DDU's legal team explains, they can also offer light at the end of the tunnel of an FTP hearing.
Since 1 November 2016, the GDC has been able to offer undertakings to members who would otherwise face a practice committee hearing. Undertakings are an agreement between the GDC and you about your future conduct or practise.
If a complaint is made against you, and after an initial investigation, the GDC will decide whether it amounts to an allegation that your fitness to practise may be impaired. If it does, the complaint will be referred to GDC case examiners. You will be told about the allegation and given an opportunity to respond, and if you have not already done so we strongly advise you to contact us for assistance at this stage.
The case examiners will consider the complaint along with your response, and can decide to close the case (with no action, advice or a warning), refer the case to a practice committee for a full inquiry, or ask you to agree a series of undertakings on your registration.
Undertakings are offered as an alternative when the case examiners consider that an allegation ought to be referred to a practice committee because your fitness to practise may be currently impaired. They cannot be offered if there is a realistic prospect that your name would be erased from the register if the allegations were referred to a hearing.
Purpose of undertakings
Undertakings are likely to restrict your practise in some way. For example, they might prevent you from practising in certain circumstances, from carrying out certain treatments, or from treating particular categories of patient. But they can also make positive requirements, such as to undergo training in a particular area of practice.
Undertakings may be suitable in health, as well as conduct and performance cases, and need to be workable and not tantamount to suspension. The case examiners will be concerned not only that they address the alleged issues of impairment of fitness to practise, but also whether you are likely to accept and comply with them and whether you have insight into your shortcomings.
They will not be offered if:
- workable undertakings cannot be formulated
- there remains a substantial dispute over the facts alleged
- patients may remain at risk
- they would not uphold public confidence in the profession. For example, they are unlikely to be offered in cases concerning dishonesty, serious violence or sexually motivated cases.
In preparing a response for the case examiners, occasionally we may advise you to proactively offer to accept undertakings to try and avoid a referral. However, if undertakings are not considered appropriate by the case examiners and there is a concern that your fitness to practise may be impaired, your case is likely to be referred to a practice committee for a full hearing.
Agreeing undertakings with the GDC
If the case examiners consider that undertakings should be offered as an alternative to referral to a practice committee, they will invite you to comply as they consider appropriate.
The proposed undertakings are likely to be taken from the GDC's bank of undertakings. The GDC will write to you with the proposed undertakings, stating how long they intend to last and how they are to be published. They will also make clear which, if any, undertakings will not be published, and will include a copy of the proposed public-facing summary of the issues.
The GDC's rules don't give any specific time limit on how long undertakings will be in place, but its guidance states that this wouldn't ordinarily exceed three years.
You will have 28 days to confirm whether you agree to the undertakings. You might want to respond that a proposal may not be workable for you or suggest an alternative time period, and we can advise you about this if needed. However, if you do not agree the undertakings when they are offered the case examiners must refer the allegation to a practice committee.
Undertakings are likely to restrict your practise in some way…But they can also make positive requirements, such as to undergo training in a particular area of practice.
Publication of undertakings
The case examiners decide whether undertakings should be published on the GDC's online register, and the GDC's policy is that they should ordinarily be published for as long as they are in force. The entry will include a background summary and how the undertakings will protect the public in the future, along with details of the allegation which have either been admitted or stand a real prospect of being established, but the GDC won't publish any information which directly relates to your health or private and family life.
Undertakings will then form part of your fitness to practise history with the GDC and might be considered in the event that a further complaint or information is received in the future. Even after the period of publication has expired, details will be made available on request to relevant enquirers (which might include prospective employers or overseas authorities, for example) and otherwise where it is in the public interest for the information to be disclosed.
Once in place, undertakings and your compliance with them are monitored by the GDC's case review team. They will conduct regular reviews, and the GDC can carry out any investigations appropriate to the consideration of whether you have complied. Where it appears that you have failed to do so without a valid reason, the original case may then be referred to a practice committee along with an allegation relating to the failure to comply with the undertakings.
After an appropriate length of time, it is possible to provide evidence that the concerns have been remedied and apply for the undertakings to be discontinued. Otherwise, before the end of the agreed period set, the case will be reviewed again by case examiners to consider whether any real prospect remains of a practice committee finding your fitness to practise to be impaired.
If you are subject to a GDC investigation, the DDU will be able to advise you about undertakings in the particular circumstances of your case. You may need to arrange to have a mentor when undertakings are in place (see separate article in this issue).
Venessa qualified as a solicitor with Hempsons in 2009. Before this, she worked in the Fitness to Practise Directorates of the GDC and the GMC. After six years at Hempsons, Venessa moved to Blake Morgan where she prosecuted cases for the GDC. In 2014, she joined Gordons Partnership LLP, representing dentists on behalf of the DDU, and joined the DDU fully in June 2016.
See more by Venessa Holt