Serious professional misconduct and the need for an apology

Introduction

Most commentators agree that doctors should normally apologize when things go wrong. ^1–5 The offering of apologies can help restore trust in doctors and the health-care institution, decrease negative emotional reactions such as anger and distress, and go some way to acknowledge properly the injuries or harms incurred by patients. ^1,5,6 There is also growing literature to suggest that patients often desire an apology more than financial compensation, ⁴ and that the giving of an apology might reduce the risk of litigation. ⁷ To my knowledge, however, nothing has been written in the academic literature specifically on the question of whether doctors should ever be required to apologize as a condition of their ongoing registration.

What is the position of the General Medical Council (GMC) on the need for an apology from doctors? Undoubtedly, the GMC takes the view that it is important for doctors to apologize when something goes wrong. For instance, in Good Medical Practice the GMC states that where a patient under the care of a doctor suffers harm the doctor ‘should offer an apology’. ⁸ Also, in its Indicative Sanctions Guidance for Fitness to Practise Panels the GMC states that the insight associated with the making of an apology is an ‘important factor’ in a fitness hearing (and therefore the presence or absence of an apology clearly constitutes important evidence when deciding whether doctors are safe to practise). ⁹

However, I am not aware of the GMC anywhere stating clearly and unequivocally that there are circumstances in which an apology must be obtained from a doctor if the doctor is to be allowed to continue practising. And, in fact, the general tone of the relevant section of the GMC's indicative sanctions guidance suggests that the GMC might not be of the view that it would be appropriate to require doctors to apologize. Thus, in that publication the GMC states that ‘occasionally a doctor may be constrained by issues involving legal liability … and/or legal advice and therefore does not offer an apology’. ⁹ The GMC also states that ‘whether … an apology or expression of regret is framed and delivered … may be affected by the doctor's circumstances, for example, their ill health’. ⁹ Finally, there is the explanation that the GMC gives in its indicative sanctions guidance for holding that apologies should be given ‘where appropriate’:

‘The duty to “offer an apology” where appropriate reflects that, in our society, it is almost always expected that a person will apologise when things go wrong. However, to some individuals (and this may or may not depend on their culture) offering an apology amounts to an acceptance of personal guilt which, depending on the facts, a doctor may regard as inappropriate or excessive’. ⁹

Now, it is not entirely clear how this statement is to be interpreted but it certainly seems to be saying that apologies might not be required because doctors may not think themselves responsible for what went wrong. At the very least the statement renders unclear, and therefore less than satisfactory, the GMC's view on whether, and, if so, in what circumstances, an apology is to be required from doctors.

More discussion and clarification on whether doctors should ever be required to apologize would be something to welcome. It would benefit conduct panels or committees to have more detailed guidance on whether apologies do ever need to be obtained from doctors and, if so, the reasons for this. Moreover, it would benefit doctors, patients and the wider public to know what is to be expected from doctors in the way of apology giving.

To help initiate and inform this discussion, I will outline one circumstance in which a doctor should be required to apologize before being allowed to practise again. My claim will be that doctors should be required to apologize when they have been found guilty of serious professional misconduct (SPM). I will give three arguments in support of the position I advance. Later in the paper I will also answer an objection that might be made to the position I advance. Finally, I will consider whether there should be any exceptions to the requirement that doctors found guilty of SPM are to apologize as a condition of their registration.

Definitions of ‘apology’ and ‘serious professional misconduct’

Before giving the reasons for why doctors found guilty of SPM should be expected to apologize, it is necessary to define ‘apology’ and ‘serious professional misconduct’.

As often noted in the literature, the term ‘apology’ can be interpreted variously and not always to designate personal fault or responsibility. ^1,10,11 Although the term ‘apology’ is often used to acknowledge responsibility for an offence, it is also sometimes used to express condolence or sympathy (as in ‘I am sorry to hear that your uncle has died’) or regret (as in ‘I am sorry that your time in hospital was less than happy’). For the purpose of this paper, however, I will follow Aaron Lazare and interpret ‘apology’ in the much more restrictive sense of the term, namely to refer to an acknowledgement of responsibility for an offence along with an expression of remorse, where an offence refers to ‘a physical or psychological harm caused by an individual or group that could or should have been avoided’. ^1,10 According to this definition of an apology two components of an apology can be identified. First, to apologize is to acknowledge responsibility for an offence, which involves acknowledging that one is at fault or is to blame, at least in part, for the offence committed. Second, to apologize is to express remorse or contrition for the offence, where that is normally taken to include demonstrating regret for the offence along with evidencing a desire and commitment never to repeat the offending behaviour.

‘Serious professional misconduct’ refers to behaviour that is in violation of one or more professional obligations or expectations, that is to say, expectations that are made of doctors in their role or capacity as doctors. These include the GMC's Duties of a Doctor (such as protecting and promoting the health of patients and the public, and providing a good standard of practice and care) cited in key GMC publications, most notably, of course, Good Medical Practice. ⁸ It should be noted that failure to meet a professional expectation can include instances of omission (for example, a failure to provide an appropriate standard of care) as well as acts of commission (for instance, behaving dishonestly or fraudently). However, not any violation of a professional obligation counts as ‘serious professional misconduct’. Professional misconduct is serious only when it involves a severe or persistent failure to demonstrate behaviours expected from doctors. The difficulty of course lies in saying what counts as a ‘severe’ or ‘persistent’ failure, and the lack of guidance on this has been noted elsewhere. ¹² Nevertheless, behaviours commonly regarded as examples of SPM include showing a deliberate or reckless disregard of clinical responsibilities towards patients, causing patients serious harm, sexual offences, and behaving dishonestly, fraudently or in a way designed to mislead or harm others. ⁸

Why an apology is needed in cases of SPM

The position to be argued for in this section of the paper can be stated as follows:

Doctors found guilty of SPM by the relevant conduct panel should be required, as a condition of their registration, to give an apology that is framed and delivered in a suitable way to all parties that have been aggrieved by the doctor's misconduct.

Before outlining the arguments for the position I defend, I will spell out three important features of that position. To begin with, in any case of SPM there will be a number of parties that have been aggrieved by a doctor's behaviour. These will normally include a person, say a patient (or his or her relatives) or a colleague, who was directly wronged or harmed by the doctor, but also in all cases the medical profession that the actions of the doctor threatened to bring into disrepute. Given this fact, if an apology is owed in cases of SPM it will be owed to all parties who have been aggrieved by the doctor's misconduct. In effect, this means that the doctor will need to apologize directly to the aggrieved parties, or, if that is not judged to be possible or appropriate (as might be the case, for instance, when an aggrieved patient is deceased or wishes to have no contact with the doctor), the doctor will need to communicate to the relevant conduct panel that he or she is sorry and would apologize to the aggrieved party if it were possible or appropriate to do so.

Second, the wording of the apology and the manner in which it is given are essential to the apology process. ¹³ An apology will be meaningful and beneficial to an aggrieved party only if the apology is framed and communicated in such a way that it demonstrates clearly an explicit acknowledgement of responsibility along with an expression of remorse. For that reason it is crucial that doctors use suitable language and terminology when wording an apology and that great care is given to the way in which the apology is delivered, as to whether, for instance, the apology is to be given orally or in a written format. Moreover, because a doctor's communication skills will be critical if an appropriately worded and delivered apology is to be given, ^5,13–15 it seems reasonable to hold that if a doctor is to apologize then the doctor should be expected, or at least advised strongly, to receive appropriate training and support. ¹³

The final feature to spell out here is that although doctors found guilty of SPM should be required to apologize as a condition of registration, this does not mean that an apology will be sufficient for the purpose of registration. This is an important point because it is clear that in many, possibly all, cases of SPM more than an apology will be required. For instance, many doctors guilty of SPM will need to demonstrate that they have undergone remedial training or support. Also the requirement on conduct panels to ‘declare and uphold proper standards of conduct’ will often demand that doctors guilty of SPM are suspended for a period of time (sometimes erased permanently from the medical register), notwithstanding their giving of an apology. And it needs to be borne in mind here that in many cases of SPM the offence for which a doctor has been found guilty of committing will not be an isolated event and will have had significant fall-out with respect to patients' trust and confidence in the medical profession; clearly such considerations will need to inform panellists' deliberations regarding suitable sanctions and what conditions other than the need for an apology should be imposed on a doctor's registration.

Having spelt out some important features of the position to be defended, I will give my arguments for that position. As stated in the previous section, an apology involves an acknowledgement of responsibility for the committing of an offence. This gives rise to two conditions that must be met before it would be suitable for an apology to be given by a doctor. First, it requires that the behaviour for which the doctor is to apologize constitutes an offence. Second, the giving of an apology requires that the doctor is to be held responsible for the offence that was committed. The first thing that we need to determine then in order to say whether doctors found guilty of SPM should be required to apologize is whether cases of SPM satisfy both of these conditions.

And it is clear that cases of SPM do satisfy both conditions. This is because, first, in a case of SPM the behaviour for which the doctor is to apologize constitutes a serious professional breach and for that reason is a form of conduct that should have been avoided; hence the first condition is satisfied. Moreover, the second condition will be satisfied because in cases of SPM the doctor is responsible for his or her conduct. This is because if the doctor was not at fault – as might be the case, for instance, where a doctor had been coerced by some other person into behaving in an unacceptable way – then it would be inappropriate, indeed unfair, to find that doctor guilty of professional misconduct. And even in a case where a doctor's failure to discharge a relevant obligation is not deliberate but due to medical incompetence, the doctor is still to be held responsible for his or her conduct. This is an important point because it is no defence for a doctor guilty of SPM to maintain that due to a lack of clinical expertise he or she was unable to discharge a relevant professional obligation. Doctors are expected to possess a certain level of medical expertise. They are expected also to recognize and work within the limits of their clinical competencies. ⁸ By agreeing to work to those professional expectations – which in effect doctors do agree to when they register as doctors – doctors cannot cite their clinical failings as an excuse for not meeting their professional obligations.

Holding that SPM identifies conduct that is suitable for the giving of an apology does not amount to holding that the giving of an apology is to be required in cases of SPM, however. The second thing to be demonstrated is that there is a convincing case for holding that doctors found guilty of SPM should be expected to apologize as a condition of their ongoing registration. Now, according to the GMC's Indicative Sanctions Guidance for Fitness to Practise Panels, imposing conditions on a doctor's registration can be justified on the grounds of (1) the protection of patients, (2) the maintenance of public confidence in the profession, and (3) declaring and upholding proper standards of conduct and behaviour. ⁹ I will now argue that making the registration of a doctor found guilty of SPM conditional on the requirement that he or she apologizes can be justified on the bases of (1)–(3).

To begin with, it can be justified on the basis of (1) because the giving of an apology is needed before a conduct panel can be persuaded that a doctor is safe to practise. Now, it is unclear if the giving of an apology can ever be sufficient for thinking a doctor poses no risk to others because it is always possible that a doctor will reoffend after apologizing, and, of course, not all apologies are made sincerely. For this reason the doctor will need to evidence additional grounds for judging him or her safe to practise. For instance, doctors might be expected to demonstrate they really do regret previous behaviours and are committed to ensuring nothing similar happens in the future; this might be shown by their willingness to undergo remedial training or support. But the giving of an apology is a necessary condition that must be met before a doctor found guilty of SPM can be trusted not to reoffend. The reason for this is not that that doctors who fail to apologize will necessarily repeat offending behaviours. Neither is the reason for holding this that doctors will not be able to provide evidence other than an apology in support of finding them fit. In fact, a doctor might be able to produce other evidence that in cases involving lesser offences may be sufficient for the purpose of finding the doctor fit. Rather the reasoning is that such are the stakes involved in cases of SPM, and such is the duty of care owed to patients, that for a conduct panel to find a doctor guilty of SPM safe to practise that panel has to be convinced beyond all reasonable doubt that the doctor is no longer a risk, and that will require an apology from the doctor. This because although apologies can fail to be sincere (and therefore fail to constitute insight or regret), no doctor will be able to demonstrate that he or she is genuinely sorry and remorseful unless an apology is given. And if a doctor found guilty of SPM fails to demonstrate that he or she is genuinely sorry (as would be the case if the doctor fails to apologize) then there will not be sufficient reason for believing that the doctor in question acknowledges properly the nature and severity of his or her wrongdoing, and therefore not enough in the way of assurances that the doctor has the insight and commitment needed for the purpose of judging that doctor fit to practise.

Second, requiring an apology from doctors guilty of SPM can be justified on the basis of (2). This is because it is likely the public will have less confidence in the medical profession if the public perceives it to consist of members who are unapologetic for the serious offences they have committed. In particular, the public will be less likely to trust members of the medical profession if the public believes there are doctors practising who remain unapologetic about previous serious misconduct. (It is also worth remarking that the public is less likely to have confidence in the system of regulation that is designed to safeguard the public's interests, if the public perceives that it is allowing doctors found guilty of SPM, but who remain unapologetic, to continue practising. Allowing such doctors to practise not only threatens to give rise to the fear that the interests of patients are not being safeguarded, but also threatens to encourage the view that doctors' regulatory body is not fulfilling its function to ‘declare and uphold proper standards of conduct and behaviour’: see below.)

Third (and very importantly) making the registration of doctors found guilty of SPM conditional on the requirement that they apologize can be justified on the grounds of (3). Considerations of justice demand that in this society the proper thing to do after committing an offence is to apologize. But then the making of an apology is a form of conduct that needs to be ‘declared and upheld’ by the GMC. Now, in many cases where the wrong committed is relatively minor, the declaring and upholding of the need for an apology is unlikely to mean making an apology a condition of registration. Failure to apologize in such a case would be unfortunate, but would demand nothing more than a show of disapproval or reprobation; in such a case making an apology a condition of registration is likely to be disproportionate to the nature of the wrong committed. But in cases where the doctor fails to apologize for a wrongdoing that is serious enough to constitute SPM a failure to apologize can no longer be treated as a relatively minor matter, one that demands only a show of disapproval. This is because the failure to apologize for a serious offence is itself a serious professional breach, and one that is very hard to reconcile with a system of registration that allows doctors found guilty of SPM to continue practising without giving an apology. So, in other words, only by making the registration of doctors found guilty of SPM conditional on the requirement that they apologize can the GMC be seen to be ‘declaring and upholding proper standards of conduct and behaviour’; only then will the GMC be showing sufficiently its disapproval of the doctor's failure to apologize; and only then will the GMC be sending out a strong enough message to the profession and the public in general that apologizing for wrongdoing is something that is strongly expected from doctors.

Objection to requiring doctors to apologize

It is difficult to know exactly how the above statement from the GMC's indicative sanctions guidance is to be interpreted, but it does suggest a possible objection that might be made to the view that doctors found guilty of SPM should be required to apologize. For it might be held that requiring a doctor to apologize is unfair to the doctor because it presupposes personal guilt or responsibility and the doctor might be strongly of the view that he or she is not guilty of wrongdoing or wrongdoing for which an apology is owed by the doctor. In what follows I outline and answer two considerations that might be motivating this objection.

The first thought that might be motivating this objection is the worry that it is unfair to demand of doctors judged to be guilty of SPM that they apologize because they might in fact be innocent of professional wrongdoing. But if that is the worry being raised then the right response surely has to be that if a doctor has been found guilty of SPM on the basis of evidence judged to be sufficient by a conduct panel for making that judgement then until further evidence comes to light the doctor is to be presumed guilty of SPM. Conduct panels have to make decisions regarding appropriate sanctions and conditions on the basis of the evidence available. Otherwise it is hard to see how the regulation of doctors can work at all. If the possibility of a doctor not being guilty of SPM were sufficient to prevent conduct panels from requiring doctors to apologize then it would be difficult to see how that possibility should not be sufficient also to prevent conduct panels from suspending or erasing doctors or imposing other sanctions or conditions on a doctor's registration. So, of course there might always be the possibility that a doctor is innocent of the offences that he or she has been found guilty of committing, but that has to be demonstrated by the doctor. Until then the presumption has to be that the doctor is guilty of SPM and so long as that is the assumption a conduct panel is entitled, required even, to impose suitable conditions on the doctor's registration, including a demand for an apology.

The second (and perhaps on the face of it more serious) consideration that might be motivating the objection outlined above is the worry that even if a doctor can be presumed guilty of SPM, requiring an apology from that doctor is to pressurize that doctor to do something that may not be true to what the doctor believes, and it might be held that there is something humiliating, morally compromising even, about being placed in such a position (for discussion of a similar worry raised in the criminal context, see Bennett ¹⁶ ). Now, I think there would be some force to this objection if the arguments that have been given for the need for an apology were not as strong as they are. This is because ideally no regulatory system will require and thereby exert pressure on doctors to do things that are not necessarily true to what they believe (for the reason that such a requirement might be humiliating, and, therefore, distressing for doctors). On the other hand, it is not possible for a regulatory system to avoid the creation of such professional requirements altogether because there will always be requirements that need to be implemented even though they will demand some doctors to behave in ways that might challenge them personally. Consider, for instance, the professional and legal requirement on doctors to terminate pregnancies in cases of emergency and the doctor who is opposed to termination of pregnancy in all circumstances; or the professional and legal requirement on doctors to respect the competent refusals of adult patients to life-saving treatments and the doctor who believes that by allowing a competent patient to die the doctor will be permitting a greater evil to occur than if he or she ignored the patient's refusal and provided life-saving treatment.

Given the above, we need to ask the following question: does the need for a doctor found guilty of SPM to apologize outweigh the concern we have regarding the personal distress that that requirement might cause some doctors? And I think the three reasons cited above for obtaining an apology – namely, the need to protect patients, maintain confidence in the medical profession, and declare and uphold proper standards of conduct – do indeed outweigh such concerns. That is to say, although ideally doctors would not feel pressurized into doing something that might not be true to what they believe, a regulatory system that does not require doctors found guilty of SPM to apologize for their misconduct is much less acceptable than a regulatory system that does require doctors found guilty of SPM to apologize.

Exceptions to the requirement for an apology?

Someone might agree with what has been said so far (and therefore agree that the objection just considered does not overturn a general need to obtain apologies from doctors found guilty of SPM), but hold that there are still some circumstances in which it would not be appropriate for a doctor found guilty of SPM to be required to apologize. In particular, someone might cite the two circumstances noted by the GMC in its indicative sanctions guidance and which I cite in the Introduction, namely (1) the circumstance in which a doctor is unable or unwilling to apologize due to ill health, and (2) the circumstance in which a doctor is constrained for legalistic reasons. ⁹

Of the two circumstances just cited I am much less sympathetic to the second than I am to the first. In fact, it is hard to see how the mere fact that a doctor refuses to apologize for legal-related reasons can constitute reason not to require an apology from a doctor found guilty of SPM. Putting to one side the question of whether the giving of an apology does threaten to have adverse legal consequences for doctors (recent guidance from the NHS Litigation Authority holds that the provision of a meaningful apology is not an admission of liability ⁴ ), there seems to be something deeply morally flawed with the view that a doctor found guilty of SPM by his or her regulatory body should not be required to apologize because that might strengthen the case for the legal prosecution of that doctor. If a doctor has been found guilty of a form of misconduct that possibly warrants also the imposition of legal or criminal sanctions, then the onus should be on the doctor to decide whether or not to comply with the requirement to apologize, and not on the regulatory body to protect the doctor from the possible legal repercussions of giving an apology.

But what about the situation where a doctor is unable or unwilling to apologize due to ill health and where we might suppose that the demand for an apology would be seriously detrimental to the doctor's health? Now, it is not to be denied that requiring a doctor to do something that might be seriously detrimental to that doctor's health is normally uncharitable and maleficent. Moreover, if such a requirement were generated by the intention to cause a doctor ill health then that requirement would be morally iniquitous and never justified. But the requirement that a doctor apologizes will not be made with that particular intention or purpose in mind. Rather the intention will be to ensure only that proper standards are declared and upheld and that the interests of patients are safeguarded properly. And given this fact it is no longer clear that such a requirement cannot be justified even though an unintended consequence of that requirement might be the ill health of the doctor. In fact, it is difficult to see how such a requirement is not appropriate in such a case. This is because if requiring a doctor to apologize is the only way that a conduct panel can be sufficiently convinced that a doctor is safe to continue practising and that requirements of justice are met, then there is no alternative but to require the doctor to apologize, notwithstanding the (unintended) ill effects this might have on the doctor's health. In this respect requiring a doctor to apologize seems no different from other sanctions or conditions that may be imposed on a doctor's registration (including suspension and erasure), any of which might non-intentionally interfere with a particular doctor's health but which, for all that, might be necessary for the sorts of reasons just discussed.

Conclusion

It has been argued that the registration of doctors found guilty of SPM should be conditional on the requirement that they apologize. As noted earlier, the position defended in this paper seeks only to establish a necessary condition that should be imposed on the registration of doctors found guilty of SPM. Again it should be emphasized that this is an important point to make because it is clear that in most cases of SPM more than an apology will be needed. For instance, many doctors who are found guilty of SPM will need to demonstrate that they have undertaken remedial training or support. Also the requirement on conduct panels to protect patients as well as declare and uphold proper standards of conduct and behaviour will often demand that doctors found guilty of SPM are suspended, sometimes erased permanently from the register, notwithstanding the giving of an apology.

I have outlined one circumstance in which a doctor should be required to apologize, namely when the doctor is guilty of SPM. This does give rise to the question of whether there might exist other circumstances in which doctors should be expected to apologize as a condition of their registration. This question will need to be answered at another time, of course, although clearly it would be inappropriate to impose such a strong requirement on the majority of doctors who fail to fulfil a professional obligation but in a way that falls far short of SPM (which is not to deny that such doctors should be strongly encouraged to apologize).

Although this paper has been concerned with doctors overseen by the body responsible for the regulation of doctors in the UK, there is no reason why my arguments are not relevant also to the regulation of doctors elsewhere (and especially doctors working in societies that share similar expectations regarding the role and importance of apologies). Moreover, it seems likely that the position defended in this paper will be defensible also with respect to other health-care professionals (both in the UK and elsewhere) who have been found guilty of SPM.