A landmark ruling, and why the GMC must now ensure fairness for all

by Chaand Nagpaul

The GMC has been found in a landmark ruling to have racially discriminated against a doctor, in pursuing an investigation which had a severe impact on his life. There must now be an independent review of its fitness-to-practise procedures

 

Location: UK
Last reviewed: 25 June 2021
Chaand Nagpaul

In a landmark ruling, the GMC was last week found to have racially discriminated against a doctor.

An employment tribunal ruled that Omer Karim, a consultant urological surgeon in Berkshire, was treated less favourably during a GMC investigation than a white colleague who faced similar allegations.

Reading Employment Tribunal said in its ruling: ‘We have come to the conclusion that there is a difference in the treatment of the claimant in contrast to Mr L, a white doctor. We do not consider that there has been a credible explanation for the difference in the treatment… we consider there is evidence from which we could conclude that the difference in treatment of the claimant in comparison with Mr L and the delay [in dealing with his case] were on the grounds of his race.’

We know for a fact that doctors from minority ethnic backgrounds are already disadvantaged by being referred by their employers to the GMC more than twice as often as their white counterparts. This was in the GMC’s own commissioned Fair to Refer report, published in 2019.

But this ruling raises a further and highly significant concern – that not only do minority ethnic doctors find themselves referred to the GMC more often, but that they can then face further discrimination from GMC processes themselves.

Four in 10 doctors in the UK are from minority ethnic backgrounds. It is unacceptable that doctors who give so much to the NHS, without whom our health service could not function, should feel that the dice are loaded against them both at work and by their regulator.

We know that a GMC referral can wreck the lives and mental health of doctors. For Dr Karim, the length of the investigation caused, in the words of the tribunal, a ‘prolonged threat’ to his career and reputation. The tribunal said that for aspects of its investigation, it seemed the GMC was ‘looking for material to support allegations against Mr Karim, rather than fairly assessing materials presented’.

According to media reports, Mr Karim said his ‘life fell apart’. He had to sell the family home to fund his legal battle with the GMC. He added: ‘I could only get locum work, so lived apart from my family in a Travelodge for five years after I got a part-time job in Portsmouth.’

Sometimes the impact of a GMC investigation can be even worse. Sridharan Suresh, a consultant anaesthetist, took his own life in 2018 within hours of receiving notification that he would be facing an interim orders tribunal. The BMA is supporting legal action by his widow, Viji, against the GMC and Dr Suresh’s former employer.

Mrs Suresh said that when her husband received the notification from the GMC, ‘he was on his own, he was alone, there was nobody there with him. The amount of impact it had – it was a kind of shockwave’.

A letter before action to the GMC says that the regulator should have known there was a real and immediate risk of suicide, and that there were system failures after the GMC failed to take any steps to liaise with Dr Suresh’s employer or the police to assess his vulnerabilities, despite Dr Suresh telling his trust how the investigations were affecting him and his family.

The GMC is appealing the outcome of Mr Karim’s case because it believes that ‘the tribunal wrongly concludes that disproportionate referrals to the GMC by employers constitutes evidence of direct discrimination in Mr Karim’s case’, and also that the case of the doctor to whom Mr Karim was compared differed in key respects.

It is vital that the GMC openly recognises that doctors’ confidence in their credibility has been severely damaged by this tribunal ruling, which is made all the worse by its decision to appeal it. It now needs to urgently address the wider concerns that this case raises and demonstrate how it will command the profession’s confidence that it will treat all doctors in a fair and even-handed manner.

This must include commissioning a robust and comprehensive independent evaluation of its fitness-to-practise decision-making procedures, and a commitment to act quickly on its findings. There should also be immediate safeguards to ensure fairness in its handling of any disciplinary referrals, including additional external scrutiny.

This is of course part of a wider shameful picture of discrimination and disadvantage experienced by doctors from minority ethnic backgrounds. It can be seen in the differential attainment achieved in postgraduate examinations, poorer career progression, increased levels of bullying and harassment and an ethnicity pay gap.

Against this background, it is not surprising that many ethnic minority doctors live in fear of receiving a GMC investigation notification in which they feel their fate has already been sealed without the natural justice of a fair assessment and which could potentially end their career.

It is a moral imperative to ensure that doctors of all backgrounds, who work in the most challenging of environments, feel that the fairness that underpins the values of the NHS, applies equally to the way they are treated themselves.

Chaand Nagpaul is BMA council chair