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 Cloke Browne, director at Owlicity, 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.

CHRISTOPHER CLOKE BROWNE: Welcome to Andrea James as our guest on the Confidence to Thrive podcast. We will be discussing what I think is quite a tricky issue, particularly for functional medicine practitioners — 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?

ANDREA JAMES: Thanks so much for inviting me on. I'm delighted to be with you today talking about this. My name's Andrea James, 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.

There are two limbs to the work. The main focus of my work is defending professionals in fitness to practise proceedings before the regulatory bodies. So I defend doctors before the GMC (General Medical Council), dentists before the GDC (General Dental Council), paramedics and other allied health professions before the HCPC (Health and Care Professions Council).

And then on the regulatory side, we do advisory work — things like inquests, public inquiries. We're currently in the COVID-19 inquiry for Scotland, CQC (Care Quality Commission) registration and enforcement action, patient complaints and claims. I've been doing that for 24 years.

CHRISTOPHER CLOKE BROWNE: Lovely. Thanks, Andrea. From our own experience, you do it very well.

ANDREA JAMES: Thanks.

CHRISTOPHER CLOKE BROWNE: So we've been grappling with this question with a few of our clients. 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 completely through diet, exercise, lifestyle. And so they stop prescribing medication, and at that point, they question whether or not they need their GMC registration. Now fairly clearly the GMC registration is central to the licence to prescribe. But from what I've seen, Andrea, it's broader than that. Do you think it puts practitioners at risk to give up their GMC registration?

ANDREA JAMES: 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 GMC registration and licence.

My reason for saying that is because although it's unhelpful that there's no definition of medical practice in the Medical Act and the GMC opts out of saying to somebody whether they do or don't require a licence to practise. They specifically say, "We will not provide advice on whether a licence is required in your individual role." And they say to doctors, "Talk to your employer, talk to your insurer, talk to your lawyer."

But 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.

But 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. The first element of the offence is that if you falsely use a number of titles — and that covers physician, doctor of medicine, bachelor of medicine, surgeon, general practitioner, apothecary — so all of those specific terms that people can say I won't use any of those words. But the second limb of the offence 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 recognised by law as a physician, surgeon, or any of those things.

And I think because the wording is quite broad and non-specific, so that the GMC has discretion to prosecute in cases where it's not just 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 not 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 licence to practise merely to prescribe is, in my opinion, a totally incorrect way of looking at it. A massive oversimplification.

CHRISTOPHER CLOKE BROWNE: And just to be clear, Andrea — I think there's a thought process that says, "If I give up my GMC register, I'm free and clear of the GMC. I won't worry about a fitness to practise process." 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. If you're 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 practise process — they have to run a criminal prosecution.

ANDREA JAMES: You're absolutely correct. For doctors on the medical register who don't meet GMC standards in the GMC's opinion, they can run a fitness to practise proceeding against you. And the worst thing that can happen to you in a fitness to practise proceeding is that you can be erased from or struck off 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 — are far more inconvenient and serious than having a fitness to practise proceeding. So my take personally is I'd much prefer to have a fitness to practise proceeding than a criminal prosecution.

CHRISTOPHER CLOKE BROWNE: 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 mainstream medicine, so you've got this idea of functional medicine being a sort of new medicine, and the sort of traditional, the current state being a traditional medicine, which is what the regulations set up for. A lot of traditional medicine people who might be on the GMC panels don't really understand the new medicine. And 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 scratching their head saying, "I don't understand what this person's doing."

Now, you at Keystone have quite a lot of lawyers who do fitness to practise. 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?

ANDREA JAMES: It's interesting that you say in your experience you have seen about 50% of the complaints originating from other doctors. In my data set, I would say it's higher than 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 X, Y, Z," 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'd put it at about 75 to 80 per cent 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. 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, non-misleading, and upfront information. So provided that 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 case is highly defensible.

Other than in a very small set of cases — and I'm talking one case personally in the past ten 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. 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 a concern has been raised by a traditional medical practitioner have been entirely defensible once it's been explained. The only thing I would say about that is that I think it's unfortunate when colleagues — because ultimately any member of the same profession 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 — where 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.

CHRISTOPHER CLOKE BROWNE: That's really interesting, because we absolutely agree with you there, Andrea. Our experience of working with the medical profession is it isn't a particularly supportive profession. But to us, that's music to your ears. It would be great if people could actually try and work some of this out between them.

ANDREA JAMES: Yeah.

CHRISTOPHER CLOKE BROWNE: But then interestingly, if we move that process on — I do think, and we do think in our work, that it's important for the functional medicine practitioners to work with some of these traditional GPs. There's still a lot of stuff that sits within traditional medicine. Cancer being a sort of big part of that. There are amazing things that functional medicine practitioners can do. And one of our big clients is an excellent integrative oncology clinic — so they do everything. But it's run by a very high-quality traditional oncologist.

ANDREA JAMES: Yes.

CHRISTOPHER CLOKE BROWNE: So it's always traditional plus everything else — cannabis, mistletoe, yoga, the lot. They do the whole lot.

ANDREA JAMES: Yeah.

CHRISTOPHER CLOKE BROWNE: So that interface to us is really important. And 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 doctor. And I would imagine it actually in many ways increases that risk of a report to the GMC if they're sceptical about what you're doing. If you're a qualified doctor, they're gonna be sceptical, and if you're giving up your GMC registration, isn't that gonna make them even more sceptical and even more likely to...

ANDREA JAMES: Yeah, that's interesting, because it's undoubtedly the case that if you hold your medical registration and licence to practise, then any other doctor is going to know that you're subject to revalidation, that you're subject to oversight by the GMC. 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 alternative. That's where there seems to be the real power and fantastic working — where it's a holistic complementary service rather than an alternative to traditional medicine.

CHRISTOPHER CLOKE BROWNE: 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 I think this is where functional medicine really does struggle. At some levels it's nothing more than your nutritionist doing nothing more than your mum would tell you — quite often in terms of eat better, do more exercise.

ANDREA JAMES: Or — that's a big compliment to the mums of the world, I think.

CHRISTOPHER CLOKE BROWNE: That's true. But actually when you get into it, it gets enormously sophisticated. I've been to the Nordic Labs conference at the end of last year. I don't have a degree in biology, so that sort of sets my level in all these conversations. But the level of understanding — the discussion was what I thought was probably post-degree level biochemistry. And when I spoke to practitioners around who did understand it, they seemed to agree with that assessment.

So there is enormous complexity. And even the supplements now — when you used to say to me, "Take supplements," I had the idea of going to Holland & Barrett and getting a nice colourful tin of multivitamins. But now Nordic Labs have — it's not just specific gut bacteria like Yakult or whatever — it's specific gut bacteria with a specific DNA profile to deal with certain issues. It's right into enormously precise detail, 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 to argue that you are not treating in some way. And none of this is all natural substances — and in fact, we'll get onto peptides in a minute, which is another huge thing. So it's all natural substances, so it's not medication by that definition, but it's enormously biologically potent to the human.

ANDREA JAMES: Yeah. I feel that if you want to be able to treat patients, then you've got to have your registration and your licence to practise. Each case is going to turn on 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 practising 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. CQC registration is much more prescriptive than the GMC. Where the GMC don't give a definition of medical practice, the Health and Social Care Act regulated activities sets out individually which activities in England constitute regulated activities in 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 beautician's salon — that 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 licence to practise, it's highly likely that you'll be required to hold CQC registration.

There is an exception to CQC registration if you're practising solely alternative or complementary medicine. But again, going back in a circle, we get into the regulated activities about personal care, treatment of disease, disorder, or injury. That's a separate point that I just want to flag — there's also the issue of CQC registration completely separate to your GMC registration.

CHRISTOPHER CLOKE BROWNE: Yeah, no, thank you. And it is, yeah, another one that we grapple with, because it is exactly that. If you are a registered medical professional, there's a big exemption for CQC, but there's a long list of add-backs.

ANDREA JAMES: Yeah, add-backs, that's a good way of putting it — where I say we go round in a circle, yeah.

CHRISTOPHER CLOKE BROWNE: Yes. And many of those add-backs 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 natural substances, all natural substances, but clearly a very detailed and sophisticated use of those natural substances, specifically targeted and very often held out to be an expert in — and go through the whole lot — ADHD, Lyme's disease, long COVID. There's a whole list of things people will say, "I'm 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?

ANDREA JAMES: So the short answer is, because you asked me initially how comfortable would we be defending somebody — 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. 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 practising 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 licence to practise. 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 minimise the impact of being subject to a GMC investigation because it's horrendous for doctors and 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.

CHRISTOPHER CLOKE BROWNE: Perfect, Andrea. So just to round off — thank you. That's fascinating. As with all these things, it's grey. We've only 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.

ANDREA JAMES: 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.

CHRISTOPHER CLOKE BROWNE: Perfect. Thanks, Andrea. Great thanks for your time.

ANDREA JAMES: Yeah, no — pleasure. Thanks so much for inviting me on.

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This podcast was brought to you by Owlicity Insurance Advisors, who support your business ambitions. Owlicity advises practitioners, owners, and entrepreneurs of healthcare practices on mitigating risks so your business can thrive. Learn more about how Owlicity can support you by finding the link in the show notes or visiting owlicity.co.uk