Psychiatrists called upon to provide expert reports to regulatory bodies will in most cases be required to assist the regulator where there are concerns as to the practitioner’s fitness to practise. Occasionally, where the issue is improper conduct or poor performance, a health examiner will be asked to assess whether poor health has contributed to the situation. In broad terms, the approach required mirrors that for psychiatric report-writing in general, but there are some important differences.

The timescale for the completion of these reports is often tight, but the amount of background reading is generally less than for a personal injury case, such as a road traffic accident or work injury. If a case proceeds to a formal tribunal hearing, there is a high likelihood of being called to give oral testimony. This can be challenging. MDOs have deep pockets which can fund the highest calibre QC. The stakes for the respondent practitioner are often high. Expect a robust challenge, not just of your report, but also your CV and experience in general, as happened in Pool v General Medical Council [2014] EWHC 3791 (Admin), where a paramedic challenged a psychiatrist’s expertise in providing the Health Professions Council with an opinion on her fitness to practise. The maxim not to stray outside your area of expertise applies as much to fitness to practise proceedings as any other area of expert witness work.

Some regulators have a specific report framework which they require to be used, similar in principle to low-value whiplash claims. It is important to be aware of these and check first with instructing parties. Experts in fitness to practise cases rarely receive a full bundle of records. The increased emphasis on brevity can degrade an expert’s ability fully to assist and has become a source of disquiet to some. Subjects under investigation cannot be relied upon to give an accurate history and without access to the medical records you are deprived of one of the sources of information that informs the assessment of the practitioner’s clinical plausibility. Although you are less likely to have access to the medical records, you will often be expected to converse with treating clinicians by phone or via email. The GMC now requires that any notes from such conversations are appended to the report, so that the basis for any deductions can be scrutinised by the case examiners and possibly the tribunal too. The principle is one of increasing transparency and this requirement ought to be of general applicability.

The GMC now undertakes all testing, be that for blood samples, urine or saliva testing or hair testing, through a specialist commercial company which will arrange to visit the doctor under assessment. This ensures that there is no dispute over the chain of evidence. Other regulators will probably soon follow suit. It is a requirement usually to append the results of any tests to the report. The text of a report should discuss the results and any interpretation thereof. Where alcohol excess is an issue, be prepared to face questions, if subsequently called to give oral evidence, as to the lack of specificity of the standard clinical tools such as gamma-GT. Make sure you understand some of the theory behind hair sample analysis rather than learn this the hard way under cross-examination.

There are some other ways in which providing expert psychiatric opinion to regulators differs from other medicolegal practice. There can often be two psychiatrists commissioned by the regulator and there may be a third instructed by the practitioner’s MDO. Joint statements are rare, but their use is slowly increasing. Concurrent evidence has yet to arrive. Direct collaboration between, say, two psychiatric experts instructed by the GMC is mostly forbidden; each examiner is meant to work independently. It is usually only at a tribunal that, in the case of a significant difference of opinion with a co-examiner, you are likely to be asked for specific comment on the other expert’s findings. This can require you to think quickly on your feet.

The health regulatory bodies have in recent years become aware of, and concerned about, the stress imposed on health professionals by their investigation procedures. A landmark study in 2015 showed convincingly that being subject to a complaint had a measurable effect on the mental health of doctors in the UK (Bourne et al. 2015). The GMC itself commissioned a study examining the deaths of 114 doctors between 2005 and 2013 who had been under investigation at the time of death (Horsfall 2014) and found that twenty-eight had died through suicide. It concluded that a significant proportion of suicides were related to proceedings and might have been avoided. There has since been a welcome change of emphasis in the GMC’s broad approach to investigating doctors, with an emphasis now on a more collaborative approach (Gerada 2019). The GMC has arranged for the provision of counselling through the BMA for all doctors referred to the regulator, whether or not BMA members. When writing reports for health regulatory bodies, psychiatric experts are now required to undertake a risk assessment looking at risk to self, risk to others, especially patients, and risk of relapse. Furthermore, Hall v Egdell (unreported, 2004) (see Chapter 6, ‘Addressing Unidentified Issues’) suggests that there is a duty to act if as an expert you see someone for a report and become aware that they have unmet treatment needs. With their agreement, a telephone discussion with the general practitioner will usually suffice, but safeguarding issues may require something more. The GMC has formalised these duties for its health examiners, who are now expected to take prompt and effective action if concerns about a doctor’s safety are raised during an assessment interview. In addition, the GMC has introduced the concept of a ‘vulnerable doctor’. Once identified as such, a communication plan is drawn up and published on GMC Connect (the GMC website and communication hub), which helps identify the doctor’s preferred means of communication (e.g. through a partner or not at weekends) to keep stress to a minimum.

A crucial part of report writing for regulators involves providing advice as to fitness to continue professional practice. Again, the GMC has the most structured process and procedures, with other bodies following suit to some degree. It is vital to ensure that the criteria are fully understood before writing the report. The GMC requires the expert health examiner to advise one of three options for decision by the MPT:

• fit to practise generally;

• fit to practise with restrictions;

• not fit to practise.

Each case will turn on the facts and its risk assessment. The key areas for the latter are nature and degree of illness, insight, compliance, nature of work and support network. A doctor with a serious enduring mental illness, who lacks insight and refuses to engage in the health investigation process, and who lacks support and has limited access to help, is unlikely to be considered fit to practise. On the other hand, a doctor who has been under GMC supervision for several years and has cooperated fully, who has good support and a treating mental health team, and who has gained good insight, is likely to be permitted to resume unrestricted practice, in other words to practise generally with a revocation of any undertakings. No two cases are dealt with identically. Where a doctor is considered by the expert to require restrictions, these can be usefully combined with suggestions for support and treatment. The resulting framework is very often incorporated into the undertakings required of a doctor who agrees with the GMC or MPT to limit their practice. The GMC has a comprehensive bank of undertakings for experts to use in these situations. A doctor with a drug misuse disorder would be expected to submit to regular drug testing, to avoid self-medication with over-the-counter preparations, and not to prescribe or administer or have primary clinical responsibility for drugs listed in Schedules 1 to 4 of the Misuse of Drugs Regulations 2001. A doctor with an alcohol problem would be expected to abstain from alcohol, attend a support group as directed by their medical supervisor, and submit to regular tests of liver function and full blood count and hair testing.

In Ireland, where the Health Committee of the MC keeps sick doctors away from the disciplinary process, and a sick doctor will only get to a Fitness to Practise Inquiry if its processes have failed, a requirement for expert psychiatric evidence may arise at any or all stages of the processes of the Health Committee and the independent Practitioner Health Matters Programme, as it may in the context of allegations of professional misconduct or poor professional performance. There is no MPT in Ireland and fitness to practise enquiries are carried out by the Fitness to Practise Committee of the MC. The Committee merely decides the facts and whether they disclose professional misconduct or poor professional performance; although it may make a recommendation as to sanction, that is ultimately a matter for the Council and, in the case of the more serious penalties, affirmation by the High Court. Whereas in the UK the GMC has lowered the standard of proof in medical tribunals to a balance of probabilities, the standard of proof is still accepted as being that of beyond reasonable doubt. This is a crucial difference, albeit one that is difficult to reconcile.