SPEAKER_02 0:00

You're listening to Confidence to Thrive, the podcast for ambitious healthcare practitioners and entrepreneurs, brought to you by Our Licity Advisors. Welcome to Confidence to Thrive, the podcast helping growing practitioners and healthcare entrepreneurs navigate the challenges and risks of regulation while building brands that matter. Every episode we tackle a different issue facing healthcare practitioners or entrepreneurs, or we interview a guest who is working on the leading edge of private healthcare building something that matters in their sector or profession. On today's episode, Christopher Cloak Brown, Director at Aurlicity, speaks to Andrea James, partner at Keystone Law and specialist in professional discipline and healthcare regulatory law. With experience both defending healthcare professionals before regulatory bodies and advising on regulation, Andrea discusses with Christopher the question of whether functional medicine practitioners need to be registered with the GMC. Over to Christopher and Andrea.

SPEAKER_00 0:53

Welcome to Andrea James as our guest on the Confidence to Thrive podcast. And we will be discussing what I think is quite a tricky issue, particularly for functional medicine practitioners, which is really whether or not they need to be registered with the GMC. But before we tackle that question, Andrea, maybe you can just give us a little bit of a sense of your background, what you do, how you've got to what you do.

SPEAKER_01 1:19

Sure. Thanks so much for inviting me on. I'm delighted actually to be with you today talking about this. So my name's Andre James, as you said, and I am a solicitor, I'm a partner in the firm Keystone Law, and what I specialise in is professional discipline and healthcare regulatory law. So there are two limbs to the work. The main focus of my work is defending professionals in fitness to practice proceedings before their regulatory bodies. So I defend doctors before the GMC, dentists before the GDC, paramedics and other allied health professions before the HCPC. And then on the regulatory side, we do advisory work. So it's things like inquests, public inquiries, or currently in the COVID-19 inquiry for Scotland, CQC registration and enforcement action, patient complaints and claims, all of these many issues in healthcare that are not pure adversarial fitness to practice. So I've been doing that for 24 years in September. That's me.

SPEAKER_00 2:22

Lovely thanks, Andrea. And from our work and experience, you do it very well. So thank you very much.

SPEAKER_01 2:27

That's really good.

SPEAKER_00 2:28

So we've been grappling with this question with a few of our clients as to if I'm a functional medicine practitioner, part of my ambition is to take treatment of a variety of issues and diseases away from medication. And a lot of them succeed in doing that. They deal with a range of issues through diet exercise lifestyle. And so they stop prescribing medication. And at that point, they question whether or not they need the GMC registration. Now, fairly clearly the GMC registration is central to the license to prescribe. But from what I've seen, Andrew, it's it's broader than that. And actually, do you think it puts practitioners at risk to give up their GMC registration?

SPEAKER_01 3:20

Yeah, my view would be that if you are a qualified medical doctor who has held GMC registration, and if you are going to be explaining that as part of your expertise and background in how you advertise your clinic and how you deal with patients, I think it's quite a high-risk action to take to give up your uh GMC registration and license. My reason for saying that is because although it's quite unhelpfully the case that there's no definition of medical practice in the Medical Act, and the GMC really opts out of saying to somebody whether they do or don't require a license to practice, they specifically say we will not provide advice on specifically whether a license is required in your individual role. And they say to you, to doctors, talk to your employer, talk to your insurer, talk to your lawyer. Notwithstanding that, there are a number of activities that are recognised as being reserved for medical practitioners. Obviously, prescribing is the big one, then mental health act assessments, signing death certificates, being a naval doctor, they're all things that different pieces of law say you must be a registered medical practitioner on the GMC register to do. There is a criminal offence of pretending to be registered when you're not. And the way in which that is worded is very broad. So the sort of first element of the offense is that if you just falsely use a number of titles, and that covers a physician, doctor of medicine, um, bachelor of medicine, surgeon, general practitioner, apothecary, um, so all of those specific terms that people can say we won't use any of those words. But the second limb of the offense is if you use any name, title, addition, or description implying that you're registered under any provision of the medical act or that you're recognized by law as a physician or surgeon or any of those things. And I think it because the wording is quite broad and non-specific, so that the GMC has discretion to prosecute in cases where it's not just a black and white, you're using the title of doctor of medicine and you're not on the register. That's where I think people could fall into difficulty. Because if you have been a doctor for many years, it's going to be extremely difficult to avoid ever using any name, title, addition, or description implying that you're registered. And I think it would be extremely difficult to fall into error and be at risk of a GMC prosecution, even though you're not prescribing. To look at it as needing a GMC registration and a license to practice merely to prescribe is, in my opinion, a totally incorrect way of looking at it, a massive oversimplification.

SPEAKER_00 6:14

And just to be clear, Andrew, I think that there's a thought process that says if I give up my GMC register, I'm free and clear of the GMC. I worry about a fitness to practice process and so on. But the GMC is there to regulate medical practice. And so whether you're registered or not, you're not free and clear of the GMC. I think you mentioned if you are not GMC registered, it doesn't mean the GMC don't have an interest in what you're doing if you are in that medical area. It just means that they can't run a fitness-to-practice process, so they have to run a criminal prosecution, isn't it?

SPEAKER_01 6:49

You're absolutely correct. Yeah, that for doctors on the medical register who don't meet GMC standards in the GMC's opinion, they can run a fitness-to-practice proceeding against you. And the worst thing that can happen to you in a fitness to practice proceeding is that you can be erased from struck off from the medical register. But if you're not on the medical register and you are doing one of the things which gives the GMC a power of criminal prosecution, most particularly this implying that you're registered or actually claiming to be registered, what the GMC can do instead in those circumstances is prosecute you criminally. And obviously, the consequences of a criminal prosecution, even in terms of your ability to visit America, and they are far more inconvenient and serious than having a fitness to practice proceeding. So my take is personally, I'd much prefer to have a fitness to practice proceeding than a criminal prosecution.

SPEAKER_00 7:44

And so just to move on from that, I think part of the motivation for people to relinquish their GMC registration is this idea that the sort of mainstream medicine, so you've got this idea of functional medicine being a sort of new medicine three and sort of traditional, the current state being medicine two, which is what the regulations set up for. And a lot of traditional medicine two people who might be on the GMC panels don't really understand the medicine three and or a whole bunch of people. What we see in our own business is the biggest risk functional medicine practitioners seem to face is a disciplinary process, and it's normally triggered by I would say over 50% of the time, it's triggered by a complaint by another medical practitioner, not the patient, but another practitioner who's just scratching their head saying, I don't understand what this person's doing. Now, you at Keystone have quite a lot, a number of lawyers who do fitness to practice. You see a wide variety. What's your sort of experience in the frequency of complaints and how they fit in? And how big would you see the risk of a GMC complaint?

SPEAKER_01 8:53

It's interesting that you say in in your experience, you have seen about 50% of the complaints originating from other doctors. I in within the data set we have, I would say it's higher than that, that the vast majority of the complaints we've had have been from traditional medicine doctors who have received a letter from a functional medicine doctor saying, I have advised that they see you about XYZ or have invited the traditional doctor to consider prescribing a particular treatment, and the traditional doctor has not taken it well and has had a concern. So, in our experience, I would the I'd put it at about 75 to 80% of the complaints come from other doctors. But what we have also found so far in the complaints we've had is that they're highly defensible when it is actually set out what the functional medicine doctor is doing. A particular point in terms of defensibility is being totally clear with patients. That one of the things that the GMC is very keen on is patients having freedom of choice, but that choice is made on the basis of being given totally clear, misleading, and upfront information. So provided that the doctor is being the functional medicine doctor is being clear about what it is they're offering, what it's intended to treat, what the limitations of that treatment are, what it is the patient is signing up to, we found the cases highly defensible, other than in the sort of very small set of, and I'm told there's one case personally in the past 10 years that I've encountered where the functional medicine doctor was diagnosing highly unusual conditions and treating them in highly unusual manners on a very frequent basis. And that particular case resulted in a suspension from the medical register, and then the doctor elected to move the practice back to their home country where it's actually thriving. So far, all the cases we've had where concern has been raised by a traditional medical practitioner, they have been entirely defensible once it's been explained. I suppose the only thing I would say about that is that I think it's unfortunate when colleagues, because ultimately, if any member of the same profession of you is ultimately a colleague, I think it's unfortunate where a colleague has concerns that they, if they fail to take any opportunity to say to the originating doctor, could you shed a bit more light on this for me? Why is this? And instead go directly to the GMC. So I have had a case where that has been the position that the traditional medicine GP has gone straight to the GMC and the functional medicine doctor has reached out to them saying, Look, I'd really welcome a discussion with you to explain more about what I do and what my thinking is. And the traditional GP has just said, no, I want to leave this in the hands of the GMC. And I think that's unfortunate because I think as colleagues, unless somebody is doing something that is clearly wildly inappropriate or dangerous or puts patients at risk, I think it would be appropriate to always have a discussion with a professional colleague to get some more information from them and then decide actually this is something I feel I need to bring to the attention of the GMC. Or on the other hand, now that I understand more about exactly what it is and I can see what the patient understands, this isn't a GMC matter.

SPEAKER_00 12:16

No, that's really interesting because we absolutely agree with you there, Andrea. And it's amazing. Our experience of working with a medical profession is it isn't a particularly supportive profession. But that's to us, that's music to your point well made. It would it would be great if people could actually try and work some of this out between them.

SPEAKER_01 12:34

Yeah.

SPEAKER_00 12:34

But then interestingly, if we sort of move that process on, I do think, and we do think in in our work that it's important for the functional medicine practitioners to work with somebody's traditional GP. But there's still a load of stuff that sits it within traditional medicine, and cancer being a sort of big part of that. There's amazing things that functional medicine practitioners can do. One of our big clients is an excellent integrative oncology clinic, so they do everything, but it's run by uh very high-quality traditional oncologists, so it's it's always traditional, plus all everything else cannabis, mistletoe, yoga, the lot. They do they do the whole lot.

SPEAKER_01 13:17

Yeah.

SPEAKER_00 13:17

So that interface to us is really important. Again, if you give up your GMC registration, one feels that's probably going to actually make that interface harder because then you're not speaking doctor to and I would imagine it actually in many ways increases that risk of a report to the GMC, the traditional G if they're skeptical about what you're doing if you're if you're a qualified doctor, they're going to be if you're giving up your GMC registration, isn't that going to make them even more skeptical and even more likely to that's interesting because it's undoubtedly the case that if you hold your medical registration and license to practice, then any other doctor is going to know that you're subject to revalidation, that you're subject to oversight by the GMC.

SPEAKER_01 14:04

And I would imagine that is going to give a degree of confidence. Whereas as a traditional medicine doctor, you might have a lot less confidence if you are receiving information from somebody who doesn't hold any professional registration, because the reality is that holding registration comes with a high burden in terms of the standards that you're expected to meet and the oversight that provides. It's interesting what you say about that complementary clinic because the examples we've seen that have been the most successful have all been complementary rather than an alternative to. That's where there seems to be the real power and fantastic working, whereas it's where it's a, as you say, holistic complementary service rather than uh an alternative to traditional medicine.

SPEAKER_00 14:49

Yeah, perfect. So just to go round about and probably back to where we started, we ultimately don't have this definition of medical practice. And and I think this is where functional medicine really does struggle, in that at sort of some levels it's uh it's nothing more than your nutritionist or nothing more than your mum would tell you quite often in terms of eat better, do more exercise. But it's but actually when you get into it, it's it gets enormously sophisticated. And so I've been to uh the Nordic Labs conference at the end of last year by level biology, so that's what sets my sort of level level in all these conversations. But the level of understanding or what the discussion was what I thought was probably post-degree level biochemistry, and when I spoke to practitioners around who didn't understand it, they seem to agree with that kind of assessment. So there is enormous complexity, and even the supplements now is you know, when when you say to me, when you used to say to me take supplements, I had the idea of going to Pollens and Barrett and getting a nice colourful tin of multi-bit. Is now Nordic labs have not just the gut by it's not just yakults or whatever gut bacteria, it's specific gut bacteria, but it's not even just specific gut bacteria, it's gut bacteria with a specific DNA profile to deal with certain issues. It's right into enormously precise detail, which which in some ways I would say is more detailed and more complex than a lot of traditional medicine. So I think it's very hard, and and none of this is all natural substances. And in fact, we'll get on to peptides in a minute, which is another huge thing. So it's all natural substances, so it it's not medication by that definition, but it's enormously biologically potent to the human. So I think it's very hard to argue that you are not treating in some way.

SPEAKER_01 16:50

Yeah, yeah. I feel that if you want to be able to treat patients, then you've got to have your registration and your license to practice. Each case is going to turn on an its individual factual basis, as in any legal case. But I think that if you are doing things like examining patients, taking a history, diagnosing, interpreting test results, recommending treatment, I think it's extremely difficult to say that you are not practicing medicine if you're doing those things. I think the other thing to mention, although it's not entirely what you've asked me about, is just to be really clear about the difference between GMC registration and CQC registration, that CQC registration is much more prescriptive than the GMC. So where the GMC don't give a definition of medical practice, the Health and Social Care Act regulated activities, it sets out individually which activities in England constitute regulated activities and which you must hold CQC registration to deliver. And they range from personal care, treatment of disease, disorder, injury, surgical procedures, which even includes I had a case a couple of years ago where somebody was prosecuted by CQC merely for doing thread lifts. They were a beautician rather than a registered medical practitioner, but just doing a thread lift in their cut in their beauticians, that's what it is. It was deemed to be performing surgical procedures and was criminally prosecuted by CQC. So it's just really important to be clear that under CQC regulated activities, even if you don't hold your GMC registration and license to practice, it's highly likely that you will be required to hold CQC registration. So there is an alternative for CQC registration. Sorry, not an alternative, an exception to CQC registration if you're practicing solely alternative or complementary medicine. But again, going back in a circle, we get into the regulated activities about personal care, treatment of these disease disorder, injuries. That's a separate point that I just want to flag. That there's also the issue of CQC registration completely separate to your GMC registration.

SPEAKER_00 19:05

Yeah, no, thank you. And it's it's another one that we we grapple with because it is exactly that. There is, as you say, if you are a registered medical professional, there's a big exemption for CQC, but there's a a long list of add back ins.

SPEAKER_01 19:21

Yeah, add back ins, that's a good way of putting it. I think where I say we go round in a circle, yeah.

SPEAKER_00 19:26

And many of those add back ins, I think, are very much along the lines of the sort of thing that would trip you up on GMC regulation as well. It's very much about once you get into the actual treatment of disease. And I guess the issue that we're grappling with is whilst it's completely undefined, as somebody who's experienced in dealing with these matters, how comfortable would you be with defending somebody who is clearly using what I would natural substances, all natural substances, but clearly very detailed and sophisticated use of those natural substances, specifically targeted and very often held out to be an expert in, and we go through the whole lot, PhD, Lyme's disease, long COVID, and there's a whole list of things people will say I am an expert in dealing with this condition, I deal with it with these natural substances. How defensible do you think that would be? That is not the treatment of disease.

SPEAKER_01 20:22

So the short answer is because you asked me initially how comfortable would we be defending somebody, and the answer is entirely comfortable because that's what we do, and we will always put forward the client's best case depending on their instructions to us. But as we're only talking about a hypothetical here, I would say I think it's quite problematic, and you're putting yourself at risk by not holding the registrations. And CQC are a lot more prosecution happy than the GMC. It is rare for the GMC to prosecute somebody for the criminal offence of pretending to be a registered medical practitioner. And they have an escalating policy that they start in the beginning with, say, cease and desist type letters and warnings rather than proceeding to prosecution, whereas CQC, in my experience, is a lot quicker to progress to a prosecution. These are things that you need to very carefully consider and not just presume that because you are practicing in what you consider to be exclusively alternative or complementary medicine, that you don't need your CQC or indeed your GMC registration. My advice would be that in general, it is going to be much safer to maintain your GMC registration and your license to practice. And I would encourage people to appreciate that there's very little to fear in general from GMC registration. As a general principle, it's actually a mark of quality, and your percentage risk of getting referred to the GMC is very low. I'm not going to minimize the impact of being subject to a GMC investigation because it's horrendous for doctors. Let's be clear about that. But the percentage risk of it happening is tiny, and it's important for people to be mindful of that too.

SPEAKER_00 22:04

Perfect, Andrew. So just to round off, thank you. That's fascinating. As with all these things, it's grey. We've only talked about, as you say, talked about things in general. I'm sure a number of people might trigger some thoughts. So if somebody wants your advice, they can find you at Keystone Law in Manchester.

SPEAKER_01 22:26

Yeah, absolutely. Google me, Andrea James, Keystone Law. I work between our Manchester and London offices, and people are very welcome to get in touch. Or indeed, if they have any queries they want to put through to you, we could even have a second chat if there were enough of them.

SPEAKER_00 22:39

Perfect. Thanks, Andrea.

SPEAKER_02 22:41

Thanks for your time.

SPEAKER_01 22:42

Yeah, no pleasure. Thanks so much for inviting me on.

SPEAKER_02 22:44

Thank you for listening to Confidence to Thrive. Before you go, please rate, review, and subscribe to Confidence to Thrive on your preferred podcast platform and help us spread our message to others who are making a difference in private healthcare. This podcast was brought to you by Our Licity, insurance advisors who support your business ambitions. Our Licity advises practitioners, owners, and entrepreneurs of healthcare practices on mitigating risks so your business can thrive. Learn more about how Ourlicity can support you by finding the link in the show notes or visiting ourlicity.co.uk