Healthcare fraud: medical practitioners as professional enablers

The case of Dr Anthony Kaufman hit the headlines this week, for all the wrong reasons, when the Chester GP received a six month suspension by the General Medical Council (GMC).

The GMC’s Medical Practitioner Tribunal Service, through their Fitness to Practice panel, found that Dr Kaufman had dishonestly prepared a medico-legal report in order to support a whiplash claim for a relative and that, by doing this, his actions amounted to serious misconduct.

These type of cases make news because they are a rarity; certainly not in terms of the actual behaviour but specifically in respect of sanctions by the regulator. Probity referrals to the GMC are second only to issues of clinical care and yet they account for so few suspensions or striking off decisions. So why is this?

Putting the strength of probity clauses in the GMC’s Good Medical Practice guidelines aside, a significant contributory factor to this is something known as the Cohen Judgement. In essence, this means that the panel can only judge a Doctor’s fitness to practice at the time of the hearing and not when the original issue took place.

On average a GMC investigation takes up to 18 months from referral to panel hearing. Therefore, during this time every Doctor has the opportunity to recognise their failing and to demonstrate that they have taken appropriate actions to address this before they reach their panel hearing.

Crucially in the case of Dr Kaufman, the panel concluded that he had not accepted the report’s finding that his behaviour was dishonest. They were therefore concerned that there was a risk of him repeating this behaviour. This lack of insight and active remediation undoubtedly led to the decision to suspend him.

That said however, Dr Kaufman could have faced being struck off, but the panel suspended him for six months hoping that this period will give him with sufficient time to reflect upon, and develop greater insight into, his misconduct.

It is important to note that contrary to much of what has been written, Dr Kaufman’s suspension is not currently enforced as the suspension gives gives him 28 days to appeal. Should he decide to do so, Dr Kaufman would be able to continue to practice during this time.

Dr Kaufman has produced a large volume of medico-legal reports for use in motor and personal injury claims and may well decide to return to this area of work if and when he resumes his medical practice. Doctors are often key professional enablers to committing fraud. However, a lack of effective governance and regulation does mean that we see behaviours that reflect poor practice and, in some cases, indicate actual involvement in fraudulent activity by the medical practitioner themselves.

To help our clients combat this problem, Keoghs has developed an industry leading specialist healthcare fraud function. Utilising years of experience in civil, criminal and regulatory investigations into healthcare professionals, Keoghs are the only law firm that can offer a real end-to-end healthcare investigation solution. Such is the unique nature of our specialist expertise in this area we are actively assisting the Metropolitan Police, IFED and other law enforcement agencies with a number of current criminal investigations.

In the past 18 months we have seen a rapid growth in instructions from clients to validate, review and interview medical professionals. We are also working closely with clients to develop their own healthcare validation capabilities, with a particular area of focus being the post-Jackson shift towards rehabilitation costs.