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25.109 |
I shall now examine the various processes involved in the investigation stage. In particular, I shall consider the activities undertaken by the GMC staff, by the case examiners and by the IC. |
The Purpose of the Investigation Stage
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25.110 |
It is important to note at the outset that, as I have previously explained, the term ‘investigation’ in this context is not intended to mean a process of evidence gathering. The ‘investigation’ to be undertaken during the investigation stage of the FTP procedures is the determination of whether a case should be referred to a FTP panel. However, the process of evidence gathering may be one of the activities carried out during the investigation stage. |
The Preliminary Sift of Cases by Administrative Staff
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25.111 |
Under the old procedures, members of the GMC staff (exercising the legal powers of the Registrar) carried out an initial filtering exercise. They closed cases that fell into certain categories which had been identified by the GMC as not giving rise to an issue falling within its remit. Under the new procedures, the first step in the process of dealing with allegations reported or referred to the GMC will be a similar initial sifting exercise. |
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25.112 |
Under rule 4 of the November 2004 Rules, the staff will be required to refer for consideration by a medical and a lay case examiner an ‘allegation’ which they consider ‘falls within’ section 35C(2) of the 1983 Act. Section 35C(2), to which I have previously referred, states that: |
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‘A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of -
(a) misconduct;
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.’
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| 25.113 | Whether or not the staff consider that a case ‘falls within’ section 35C(2) seems a rather odd ‘test’ to apply. From the words of the rule itself, it is not clear to what extent the staff are to be required to consider whether the allegation is capable of amounting to an ‘impairment’. If they are, the test would impose a much higher threshold than was imposed under the old conduct procedures, when the Registrar (or member of staff) had to refer a case to a medical screener if it raised a question of SPM. If the staff are required only to consider whether the information contains an ‘allegation’of the types listed in sub-paragraphs (a) to (e), the threshold will be similar to that under the old procedures, and would be appropriate. |
| 25.114 | The draft Investigation Manual Version 2, dated November 2004 (the November 2004 draft Investigation Manual), produced for the guidance of the GMC staff, shows the intended scope of the Registrar’s discretion (or that of the staff exercising his legal powers). A staff member should close a case only on specific grounds. Broadly speaking, the staff members should have concluded that the allegation does not raise a question of any of the factors listed at paragraphs (a) to (e) of section 35C(2) of the 1983 Act. |
Comment |
| 25.115 | It appears that the GMC intends that the ‘test’ at this initial stage should be similar to the test under the old procedures. It is to be hoped that a form of words might be found so that the Rules more clearly express the GMC’s intention. I suggest that the rule might be amended to state: ‘... where the Registrar considers that the allegation raises a question whether the doctor has been guilty of misconduct, his/her professional performance has been deficient, s/he has been subject to a conviction, caution or determination or has suffered or is suffering adverse physical or mental health (i.e. the factors listed at paragraphs (a) to (e) of section 35C(2) of the 1983 Act)’. The public would then know what test the GMC was applying at this stage. |
The Diversion of Cases to Local Complaints Procedures |
| 25.116 | At this point, it is necessary to consider what, if any, steps will be taken by staff at this stage of the new procedures to direct cases into local complaints procedures. In the past, as I explain in Chapter 18, many cases have been closed by GMC staff because the complaint related to treatment under the NHS or in the private sector and it appeared that local complaints procedures either had not been used at all or had not been pursued to their conclusion. Before closing a case and advising a complainant to direct his/her complaint to local complaints procedures, the staff did not consider (as the Rules required them to do) whether the case raised a question of SPM. The GMC staff would advise a complainant to pursue his/her complaint through local complaints procedures and would close the case, unless the staff had reason to believe that the doctor was dangerous or the complainant insisted on the complaint being considered by the GMC. |
| 25.117 | Two concerns arose out of this practice. The first was that it put the onus onto the complainant to take matters forward. Second, the GMC did not follow matters up and seek to find out whether the complaint had been pursued locally; there was therefore a danger that some complaints that might have amounted to SPM were lost to the regulatory system. Those concerns were put to the witnesses from the GMC who gave evidence to the Inquiry. They were asked why the GMC did not take responsibility, in an appropriate case, for passing the case to the relevant complaints body, instead of leaving it to the complainant. They were also asked why the GMC did not follow up such cases to ensure that they were not lost. In evidence to the Inquiry, Sir Graeme Catto said that the issue was ‘rising to the top of our (i.e. the GMC’s) agenda’. |
| 25.118 | These issues are not expressly dealt with in the November 2004 Rules, the Guidance accompanying them, the November 2004 draft Investigation Manual or the initial processing and assessment form (IPA). The IPA sets out every step of the investigation stage and, if it were the intention of the GMC to close cases because local procedures had not been exhausted, I would have expected the IPA to identify the stage at which that should be done and to specify the criteria to be applied. The Guidance accompanying the November 2004 Rules states: |
| | ‘... the Registrar may ... advise the maker of the allegation about other means of resolution (such as the NHS complaints procedure) or refer the allegation directly to another body for consideration’. |
| 25.119 | However, the context of this passage suggests that this advice is only to be given if the member of staff has already decided that the case does not fall within the jurisdiction of the GMC. To give such advice in those circumstances would be entirely appropriate. The criteria set out in the IPA for making the decision as to closure seem to me to have been drafted so as to ensure that all matters that do fall within the GMC’s jurisdiction are accepted into the system. It looks as though the GMC has accepted that the old practice about which the Inquiry expressed concern is to be discontinued under the new procedures. I recognise that that will lead to an increased workload for the GMC but it is clearly the right decision. |
| 25.120 | It might be said that it would be reasonable for the GMC to advise the makers of allegations about the existence of alternative means of resolution even in cases where the allegation did fall within the GMC’s jurisdiction. Provided that the maker of the allegation was not put under pressure and freely consented to take his/her allegation to a local NHS body, what could be the harm in that? In my view, it would not be a good idea to offer such advice. At the present time, local NHS complaints procedures are not appropriate for many cases in which patient protection issues arise; for example, there are at present no adequate facilities for investigating a complaint about a general practitioner (GP) at the first stage of the NHS complaints procedures. Now that the Commission for Healthcare Audit and Inspection (known as the Healthcare Commission) is responsible for the second stage, such facilities are available then, but I do not think it would be right to suggest that a complainant take that route in order for the allegation to be investigated. |
| 25.121 | The November 2004 draft Investigation Manual describes a procedure by which cases which have been referred to the GMC by a public body may be referred into a local procedure. The GMC staff should contact the referring body to discuss the best way forward. This is entirely appropriate. |
Informal Dialogue |
| 25.122 | During the Inquiry hearings, there was discussion about the need for the GMC, on receipt of a complaint (particularly one coming from a private individual), to contact the doctor’s employer or primary care organisation (PCO) in order to ascertain whether there were any local concerns about the doctor. This had never been the GMC’s practice in the past. As I explained in Chapter 18, some GMC members thought that such a practice would be unfair to doctors. However, Mr Scott told the Inquiry that the GMC intended to consider introducing such a practice. |
| 25.123 | After the Inquiry hearings, the GMC announced that, from May 2004, it would henceforth be operating a new policy for handling complaints at the initial stages of the FTP procedures. The intention was to discuss most complaints with the doctor’s employers (which term I understand to include PCOs and others with whom the doctor is contracted to provide medical services). The purpose of these discussions would be, first, to discover whether the complaint was an isolated matter or an example of a wider concern about the doctor which had been recognised locally and, second, to inform those with local clinical governance responsibilities that the GMC was considering a complaint about the doctor. I understand that this change was put into effect under the old procedures and that it yielded useful information. The GMC has informed the Inquiry that, between May 2004 and September 2004, early disclosure to doctors’ employers was made in 87% of cases. The remaining 13% were cases where the complaints made could not raise an issue for the GMC. |
| 25.124 | The position under the new procedures appears in the November 2004 draft Investigation Manual. In Stream 1 cases (those that will definitely require full investigation), the staff member will not enter into informal dialogue with the doctor’s employer; in Stream 2 cases (those where it is not immediately clear whether or not a full investigation will be needed), dialogue will take place. The consent of the complainant to that disclosure will be required and the doctor will be informed. At a later stage, there will be formal disclosure of the allegation to the employer or PCO in both Stream 1 and Stream 2 cases, although this will be by letter and it is recognised that the employer or PCO might not respond. |
| 25.125 | Reports in the medical press have suggested that the new arrangements have been greeted with dismay by doctors. It has been said that the informal disclosure to employers and PCOs of the fact that a complaint has been made is ‘unfair to doctors’ since employers will be liable to draw adverse conclusions from the fact that a complaint has been made. At the time of writing, it had been reported that at least two medical defence organisations were challenging the right of the GMC to request a doctor’s employment details for the purpose of contacting his/her employers to discuss a complaint made against him/her at a stage earlier than the time for formal disclosure to employers. |
| 25.126 | I do hope that the GMC will not be deflected from making these enquiries. The obtaining of information from an employer or PCO is an essential part of the investigation. Moreover, I do not think that the fears voiced in the medical press have real foundation. I very much doubt that an employer or PCO will draw an adverse conclusion from the fact that an allegation has been made, unless it tends to confirm concerns that the employer or PCO already feels. If that is the position, it is right that the employer or PCO is made aware of the new allegation, in the interests of patient safety, and that the GMC is aware of the other pre-existing concerns. In Chapter 27, I recommend that this procedure should be enshrined in the Rules and that the GMC should have the power to require the doctor to provide any information necessary to permit these communications to take place. |
Evidence Gathering |
| 25.127 | I shall now consider what, under the new procedures, the GMC proposes to do by way of evidence gathering. I have described in earlier Chapters how, under the old procedures, the GMC generally did little in the way of evidence gathering unless and until a decision had been taken to refer a case to the PCC for a hearing. As a consequence, a decision whether or not to refer a case to the PPC or the PCC would sometimes be taken on the basis of insufficient evidence and was in the past usually made without information about any previous concerns which might have arisen locally about the doctor’s conduct or performance. I have already mentioned that, in its 2001 Consultation Paper, the GMC identified one of the weaknesses of the old FTP procedures as the limited investigation (in the sense of evidence gathering) carried out before a decision was made about what to do with a case. Mr Scott acknowledged this weakness in his evidence to the Inquiry when he observed that the old procedures put ‘the cart before the horse’ in that a decision was taken whether a case should be referred to the PCC before the necessary evidence had been gathered. |
The 2003 Proposals |
| 25.128 | The 2003 draft Rules gave the Registrar the power, before referring a case to the IC or to a case examiner, to carry out such further investigations as in his opinion were appropriate. The Guidance that accompanied the 2003 draft Rules stated that these investigations might include writing to the doctor’s employers and obtaining witness statements. Under the 2003 draft Rules, case examiners and the IC were also to have the power to carry out, or to direct the staff to carry out, further enquiries into cases, over and above the investigations already carried out by staff. |
| 25.129 | Despite the powers contained in the 2003 draft Rules, there was little in the other documents which the Inquiry had seen, before the GMC witnesses gave evidence in November and December 2003, to suggest that the GMC intended significantly to increase its evidence gathering activities at the investigation stage. Nevertheless, Mr Scott was adamant that, under the new FTP procedures, the approach would be quite different from that previously adopted. The GMC staff would, he said, undertake evidence gathering. Mr Scott referred to the fact that the GMC was in the process of assembling a team of in-house lawyers, who would undertake evidence gathering. However, it was clear that the intention at the time he gave evidence was for the in-house lawyers to undertake investigations after a case had been referred to a FTP panel and not before; Mr Scott did not seek to say otherwise. He pointed out that some members of the existing office staff also had the potential to undertake investigative work. Mr Scott said that the case examiners would have a key role in directing what evidence gathering should be undertaken and in judging whether the evidence that had been collected was sufficient to enable them to reach a decision. The case examiners (unlike screeners in the old procedures) were to have powers to undertake and direct evidence gathering. Mr Scott emphasised to the Inquiry the ‘profound nature’ of this change which, he said, would ensure that ‘the mindset’ of those operating the procedures would be ‘fundamentally different’ as a result. |
The 2004 Position |
| 25.130 | Under the November 2004 Rules, the Registrar may, before deciding whether to refer a case to the case examiners, carry out such investigations as in his opinion are appropriate to the consideration of whether or not the allegation falls within section 35C(2) of the 1983 Act or of the doctor’s fitness to practise. The Guidance that accompanies the November 2004 Rules suggests, by way of example, that the Registrar (personally or by his staff) may make enquiries of the doctor’s employer in order to investigate whether the doctor’s fitness to practise is impaired. The draft document ‘Making decisions on cases at the end of the investigation stage: Guidance for Case Examiners and the Investigation Committee’, produced by the GMC in September 2004 (the September 2004 draft CE/IC Guidance), states that initial investigations will be carried out by staff (with the assistance of lawyers where required), for example, in cases where there is insufficient evidence to establish whether the allegation falls within the GMC’s jurisdiction or where further information is required to see if a pattern of behaviour may be established. It is said that such investigations may include making enquiries of the doctor’s employer, colleagues or others, or obtaining medical reports or other documentation. I refer at paragraphs 25.153-25.154 to the arrangements for evidence gathering which are now envisaged. |
| 25.131 | After a decision has been taken to refer a case to the case examiners, the November 2004 Rules require the Registrar to carry out any investigations which, in his opinion, are appropriate to the consideration of the allegation by the case examiners. Such investigations may be carried out whether or not any investigations have been conducted prior to that stage. Surprisingly, in the light of what was said at the Inquiry’s hearings about the key role which case examiners were to play in directing the process of evidence gathering and the fundamental change which would result, the May 2004 draft Rules omitted the power included in the 2003 draft Rules for case examiners to make enquiries into a case, or to direct the staff to make such enquiries. That power has not been restored by subsequent versions of the Rules. I do not know the reason for this omission. |
| 25.132 | The November 2004 draft Investigation Manual says that case examiners will be asked to approve an investigation plan and may wish to give instructions as to further forms of investigation to be carried out. It appears therefore that the investigations will be instigated and carried out by the staff, but that case examiners should be able to give instructions, at least from the time when a case has been referred to them. That power is not reflected in the Rules. It should be; the case examiners should have the power to direct investigations. |
Disclosure to the Doctor’s Employer or Primary Care Organisation of the Fact that a Complaint Has Been Made |
| 25.133 | I shall now consider the point in the investigation stage process where the GMC is obliged to give formal notice to a doctor’s employer or PCO that an allegation has been made about him/her. |
Mandatory Disclosure: the 2003 Position |
| 25.134 | I have already explained in Chapter 18 that, after 2000, the GMC was required, in certain circumstances, to disclose the fact that it was investigating a complaint against a doctor to the Department of Health (DoH), and to any person or body by whom the doctor was employed or by whom s/he was contracted to provide services. Those circumstances arose once the GMC had made a decision to refer the doctor to the PPC, to invite him/her to agree to an assessment of his/her professional performance or to invite him/her to agree to undergo medical examination. In other words, disclosure took place after screening of a complaint and then only if the complaint was to go forward. Although referral of a case to the IOC was not included in the list of triggers for disclosure, the Inquiry was told that it was treated as such. |
| 25.135 | With the impending introduction of the new FTP procedures, the GMC had to consider at what point in the new procedures it would be appropriate for disclosure to take place. Under the 2003 draft Rules, disclosure would have been mandatory when the earliest of the following events occurred: referral of a case to an IOC for decision, referral of an allegation to a FTP panel, the making of a direction that a performance assessment should be carried out, the issuing of an invitation to a doctor to enter into voluntary undertakings or the issuing of a warning to a doctor. The inclusion of the last of these events as a trigger for disclosure suggests that it was contemplated at that time that the decision to issue a warning (rather than to refer a case to a FTP panel) might be taken before notifying (and, presumably, before obtaining background information from) the doctor’s employer or PCO. That would seem to be another example of ‘putting the cart before the horse’, because the information available from an employer might have been such that a warning was insufficient to meet the seriousness of the case. It should be noted that, in a ‘health case’, the invitation to undergo a medical examination would not, under the 2003 draft Rules, have triggered disclosure; instead, the relevant trigger would have been the invitation to enter into voluntary undertakings under the equivalent of the old voluntary health procedures. |
| 25.136 | The effect of these new provisions would have been that, in many instances, disclosure would have taken place later under the new FTP procedures than had been the case since 2000 under the old procedures. It is not clear whether the GMC had intended this to be the consequence of the proposed changes or whether the effect was accidental. It would certainly have been an unfortunate retreat from the post-2000 position. It would have meant that the GMC could have been in possession of relevant information for several weeks or months without disclosing that information to the relevant person or body. |
| 25.137 | As a result of evidence given to the Inquiry which indicated that the proposals would not command public confidence or support, of reservations expressed by the DoH and of an apparent recognition of its own obligation to provide timely information for the purposes of clinical governance, the GMC reconsidered its original proposals which, it was conceded, were ‘clearly flawed’. At a Council meeting held in November 2003, it was decided that disclosure should be brought forward to the point under the new procedures where the Registrar (in practice, a member of staff) or a case examiner took a decision that the complaint or other concern justified investigation. |
Mandatory Disclosure: the 2004 Position |
| 25.138 | The May 2004 draft Rules therefore provided that a further event which would trigger disclosure should be a decision by the Registrar (in practice, a member of staff) to carry out or direct investigations before or after making the decision to refer a case to the case examiners. This would still have been unsatisfactory. This trigger would have been dependent entirely on whether or not any investigations were undertaken. If (as was invariably the case in the past) they were not, the doctor’s employer or PCO would not be informed of the complaint at that stage. Even assuming that, in the future, the staff were to carry out investigations in most cases, there would almost certainly remain some cases in which there would be none. For example, when the fact that a doctor has been convicted of a criminal offence is reported, it will be open to the Registrar (or the staff, exercising his legal powers) to refer the conviction direct to a FTP panel. However, in some cases, he may not do so and will instead refer it to a case examiner. If, as he well might, he does so without carrying out any investigations, the duty to disclose would not have arisen, under the May 2004 draft Rules, until after the case examiner had made his/her decision. |
| 25.139 | Another change was that, under the May 2004 draft Rules, an invitation to undergo a health assessment was also to trigger disclosure. The issuing of an invitation to enter into voluntary undertakings remained in the list of triggering events although, since this would always be preceded by a health or performance assessment, it could never be the earliest event. |
| 25.140 | The July 2004 draft Rules contained further changes to the list of events that would trigger disclosure. These were reproduced in the November 2004 Rules. The issuing of a warning has been removed from the list. Instead, disclosure will have to take place at the earlier stage of referral of an allegation for consideration by the case examiners. This is a welcome change. It gives greater certainty and means that disclosure will, in general, take place earlier than would have been the case under the old procedures. Referral to case examiners is a step that will always happen in a case which is not closed by the staff at the initial stage, save when a conviction case is referred direct to a FTP panel, and such referral is also a triggering event. If pre-referral investigation takes place, this will bring forward the disclosure process. The issuing of an invitation to a doctor to enter into voluntary undertakings has been removed from the list of triggering events. |
The Treatment of Convictions |
| 25.141 | I have described in earlier Chapters the treatment of conviction cases under the old FTP procedures. Convictions for minor motoring offences were not referred to the medical screeners and did not proceed beyond the office staff. In November 2002, the Registrar was given power to refer convictions for offences in respect of which an immediate sentence of imprisonment had been imposed directly to the PCC unless, in his opinion, such direct referral would not be in the public interest. All other conviction cases were referred to a medical screener and most of those cases were referred by the medical screeners to the PPC. In 2003, the PPC referred to the PCC less than a third of the doctors convicted of criminal offences whose cases had been referred to it. In Chapter 20, I mentioned the need, recognised by Mr Scott when he gave evidence to the Inquiry, for the GMC to make its treatment of conviction cases more consistent. |
The 2003 Proposals |
| 25.142 | The 2003 draft Rules contained what amounted to a retreat from the post-November 2002 position. They provided that, in a case where a conviction had resulted in the imposition of a sentence of imprisonment, the Registrar ‘may’ refer the allegation directly to a FTP panel. The Guidance which accompanied the 2003 draft Rules said that the Registrar was required to refer a conviction directly to a FTP panel where the doctor had received an immediate custodial sentence and where he ‘considers it in the public interest to do so’. This would have reversed the presumption which had existed since November 2002 that all convictions resulting in an immediate sentence of imprisonment would be referred to a FTP panel unless such a referral would not be in the public interest. |
The 2004 Position |
| 25.143 | The May 2004 draft Rules (the provisions remain virtually unchanged in the November 2004 Rules) altered the position once again. The Registrar will now be required to refer directly to a FTP panel any conviction case which results in the imposition of a custodial sentence, whether immediate or suspended. This is a welcome change. It makes for greater certainty in that limited class of case. So far as any other conviction is concerned, the Registrar will be required to refer it direct to a FTP panel ‘unless he is of the opinion that it ought to be referred to a medical and a lay Case Examiner for consideration’. Although this latter provision creates a presumption in favour of referral, it gives a very wide discretion to the Registrar. |
| 25.144 | In September 2004, the GMC produced guidance (which was annexed to the September 2004 draft CE/IC Guidance) to members of staff and case examiners as to how they should deal with police cautions and with convictions which had not resulted in the imposition of a sentence of imprisonment. Members of staff are advised that they should refer direct to a FTP panel any case where the doctor has been convicted of a ‘serious arrestable offence’ within the meaning of the Police and Criminal Evidence Act 1984, of a racially motivated offence, of an offence involving child pornography, of an offence under the Misuse of Drugs Act 1971 (as amended) and of any offence involving an element of dishonesty. The guidance states that there is ‘a presumption that the nature of these convictions means that the case will automatically reach the investigation stage test’. |
| 25.145 | At the other end of the scale, members of staff are advised that they may, unless the case has any exceptional aggravating factors, close cases which involve only a conviction for fixed penalty motoring offences, offences committed in the UK which are dealt with by substantially similar procedures, equivalent offences committed abroad and for offences whose ‘main ingredient’ is the unlawful parking of a motor vehicle. |
| 25.146 | The guidance to staff states that all convictions (and, it seems also to be intended although it is not expressly stated, police cautions) not falling within any of the categories that I have previously described should be referred to case examiners. Case examiners should apply the investigation stage test in the same way as when dealing with non-conviction cases. They are advised that they must consider the seriousness of the case and that they are entitled to consider the doctor’s fitness to practise ‘in the round’. Where there has been an assessment of the doctor’s health (e.g. following a drink driving conviction), case examiners may authorise the staff to invite the doctor to agree voluntary undertakings. However, case examiners are reminded that, where there is a realistic prospect of erasure, the case must be referred to a FTP panel. |
Comment |
| 25.147 | It appears to me that this guidance is clear and appropriate. I particularly welcome the guidance that all offences involving an element of dishonesty should be referred to a FTP panel. Case examiners may need guidance as to the kind of case in which there is a realistic prospect of erasure. Also, the guidance ought perhaps to make it plain that cautions are always to be dealt with in the same way as convictions. In my view, it should also be made plain that convictions resulting in a conditional discharge should be treated in the same way. |
| 25.148 | In my view, this guidance should be placed in the public domain. The question of whether a doctor convicted of a criminal offence should face a FTP panel is one in which members of the public have a legitimate interest. They should have the opportunity of contributing to a debate about which cases should be referred to a FTP panel and which should not. Moreover, the way in which the system operates in future should be transparent. The GMC should publish statistics showing a breakdown of the types of criminal offence and caution reported to the GMC and the outcomes of the decisions whether or not to refer such cases to a FTP panel and the reasons for the decisions taken. I suggest that the statistics should also show the final decisions taken by FTP panels in conviction and caution cases, so that it is possible to see clearly how the GMC deals with conviction and caution cases from beginning to end. |
Closure of Cases by the Office Staff |
| 25.149 | When the Registrar decides not to refer an allegation to the case examiners, he (in practice, the staff exercising his powers) must notify the doctor, together with any person who brought the allegation to the attention of the GMC, of his decision and of the reasons for it. |
Notification of the Doctor |
| 25.150 | The Guidance accompanying the November 2004 Rules states that the GMC will disclose to the doctor ‘all complaints that are not wholly frivolous’. Whether or not there has been prior disclosure of the allegation to the doctor, the November 2004 Rules require the Registrar, as soon as is reasonably practicable after referral of an allegation for consideration by the case examiners (or referral to a FTP panel in the case of a conviction which the Registrar refers direct to the adjudication stage), to write to the doctor, informing him/her of the allegation made against him/her and stating the matters which appear to raise a question as to whether his/her fitness to practise is impaired. The Guidance states that, if the Registrar intends to disclose the allegation to the doctor’s employer or PCO before taking a decision whether to refer it to the case examiners, the doctor must be told of that intention. The doctor should also be sent copies of any documents received by the GMC in support of the allegation. The doctor will be invited to respond to the allegation by written representations within 28 days and will be informed that any representations received from him/her will be disclosed, where appropriate, to the maker of the allegation (if any) for comment. The July 2004 draft Rules provided (and the November 2004 Rules also provide) that disclosure of the doctor’s representations to the maker of the allegation will be made only ‘where appropriate’. It is not clear in what circumstances it is envisaged that it would not be appropriate to make such disclosure. |
| 25.151 | There is no provision in the Rules requiring that the maker of an allegation should be shown the doctor’s response and, if so, at what point in the proceedings. In evidence to the Inquiry, Mr Scott said that, in some cases, it would be evident from the first that an allegation should proceed. If the Rules required that the maker of the allegation should be invited to provide comments before referral of the case to a case examiner or to a FTP panel, this might cause delay. He said that it was better to leave the decision whether to invite comments from the maker of the allegation in the hands of the Registrar or case examiners. I can see that that would be sensible where it was clear that the case was to proceed, whatever the response of the maker of the allegation were to be. However, if there were any doubt about whether the case should proceed, it seems to me to be necessary to obtain the comments of the maker of the allegation before a decision is made. When giving evidence, Mr Scott gave an undertaking that comments would be invited from the maker of the allegation in any case where there might be doubt about whether to send the case to a FTP panel. I note that the November 2004 draft Investigation Manual instructs caseworkers to disclose to the maker of the allegation the doctor’s comments on those parts of the allegations that have come from him/her. This appears to give effect to Mr Scott’s undertaking to the Inquiry. However, as I have said, the requirement to make disclosure to the maker of the allegation has not been incorporated into the Rules. I think it would be preferable for this to be done. Mr Scott said that it would be too difficult to include this provision in the Rules without tying the GMC to seeking the complainant’s comments in every case; that, he said, would cause unnecessary delay. However, I think that, with a little ingenuity, it could be managed. |
Further Evidence Gathering |
| 25.152 | I have already said that, under the November 2004 Rules, after a decision has been taken to refer a case to a case examiner, the Registrar will be required to carry out such investigations as in his/her opinion are appropriate to the consideration of the allegation by the case examiners. In particular, the Registrar (or the staff, exercising his powers) will at this point be able to direct that an assessment of a doctor’s performance or health should be carried out. This provision first appeared in the May 2004 draft Rules. Previously, and at the time of the Inquiry hearings, it had been intended that the power to direct a health assessment should be exercised only by a medically qualified case examiner or the IC. It had been suggested that the IC might not wish to delegate (at least in the short term) even to a medically qualified case examiner the decision whether to direct a performance assessment. I shall discuss this new power conferred on the Registrar when I deal with the arrangements for dealing with cases involving issues of health and performance. |
| 25.153 | The September 2004 draft CE/IC Guidance states that cases will be allocated to ‘investigation teams’ (each comprising a lawyer, an investigation manager, a number of investigation officers and case examiners). The draft Guidance says that regular team meetings will be held, at which decisions will be taken about the investigations required and progress will be reviewed. Lawyers (both in-house and external) will carry out certain investigations and will advise on those required. In a letter to the Inquiry, the GMC has said that the investigation of cases will be ‘a lawyer-led process’. The September 2004 draft CE/IC Guidance says that such investigations may include obtaining witness statements and expert reports, as well as directing health or performance assessments. |
Comment |
| 25.154 | The GMC says that it intends to employ staff, both legal and non-legal, to carry out evidence gathering at the investigation stage. Since the Inquiry’s hearings, I have seen advertisements in the newspapers seeking staff to carry out investigative work. This is a most welcome development. I do hope that a culture will be established within the GMC of proactive investigation, carried out with real determination and inquisitiveness - rather than by following a set protocol, at the end of which the investigation is regarded as complete, regardless of whether the issues have been ‘bottomed’. I would hope also that an early opportunity will be taken to restore to the case examiners the power, which was proposed under the 2003 draft Rules, to direct that any investigations which they deem necessary should be carried out. |
Consideration of Cases by Case Examiners |
| 25.155 | I shall now turn to examine the process by which the case examiners will consider cases and make decisions upon them. |
| 25.156 | During 2003 and 2004, the GMC was engaged in devising guidance for the use of case examiners and (latterly) of IC panels. The Inquiry has seen three drafts of such guidance. These are the 2003 draft Case Examiner Guidance and the September 2004 draft CE/IC Guidance, to which I have already referred, together with the draft document, ‘The Investigation Stage Test - Guidance on Criteria and Thresholds’, produced by the GMC in June 2004 (the June 2004 draft Case Examiner Guidance). |
| 25.157 | The Inquiry has also seen drafts, produced in 2003 and in June and September 2004, of the case examiner decision forms (CEDFs) to be used by case examiners when recording their decisions. |
| 25.158 | The GMC told the Inquiry that it intended to pilot the Guidance and CEDFs during a trial period in October 2004, after which they will be amended further as necessary. |
The Test to Be Applied |
| 25.159 | The test to be applied at the end of the investigation stage will, as I have said, be whether there is a realistic prospect of establishing that a doctor’s fitness to practise is impaired to a degree justifying action on registration. The impairment might arise by reason of misconduct, deficient professional performance or adverse health, or as a result of a conviction or caution or as a result of a determination by another professional regulatory body. I have already discussed the problems that arise in connection with this test and my ideas as to how these problems might be rectified and I shall not repeat my observations here. |
Guidance on the Approach to Be Applied |
| 25.160 | The November 2004 Rules contain no criteria to be used by case examiners when applying the investigation stage test. However, some insight into the approach that case examiners are expected to adopt can be gleaned from the 2003 draft Case Examiner Guidance, the June 2004 draft Case Examiner Guidance and the September 2004 draft CE/IC Guidance. |
Cases Which Give Rise to a Presumption of Impaired Fitness to Practise |
| 25.161 | Case examiners will first of all have to evaluate whether an allegation is serious enough to indicate that the doctor’s fitness to practise may be impaired to a degree justifying action on the doctor’s registration. The September 2004 draft CE/IC Guidance advises that certain categories of conduct, namely sexual assault or indecency, violence, improper sexual/emotional relationships and dishonesty, should be referred by case examiners to a FTP panel unless there are ‘exceptional reasons’ for not doing so. These categories of conduct are the categories which had previously constituted ‘SPM by definition’, save that ‘dysfunctional conduct’ has now been replaced by the narrower category of ‘improper sexual/emotional relationships’. In such cases, there will be a presumption of impaired fitness to practise and, therefore, no need to consider the issue of seriousness. |
| 25.162 | The September 2004 draft CE/IC Guidance advises that, where case examiners consider that there is no realistic prospect of establishing a case evidentially, they should not ‘normally’ close the case without first obtaining legal advice. Case examiners are advised to record on the CEDF the reasons for their decision, referring specifically to any legal advice received. |
| 25.163 | The June 2004 draft Case Examiner Guidance had advised case examiners that they should not ‘normally’ consider any arguments in mitigation raised by the doctor when considering whether to refer a case involving these categories of conduct to a FTP panel. However, that advice was omitted from the September 2004 draft CE/IC Guidance. I am concerned about that omission because I think the advice is important. It is clear from cases examined under the old procedures that the screeners often used to take mitigating factors into account quite inappropriately. |
Considerations of Seriousness |
| 25.164 | The September 2004 draft CE/IC Guidance then sets out the approach to be adopted in other cases (usually involving complaints about a doctor’s clinical practice), where there may be serious or persistent failures to meet the standards in ‘Good Medical Practice’ which raise an issue of impaired fitness to practise. It advises that not all failures to meet standards will involve an impairment of fitness to practise of a degree sufficient to justify action on the doctor’s registration. When considering whether the impairment is of such a degree, case examiners are advised that they should consider both the nature and the seriousness of the allegations. They will need to consider also the persistent and serious nature of any failures to meet the standards in ‘Good Medical Practice’. The September 2004 draft CE/IC Guidance then sets out a number of circumstances in which a question of fitness to practise is likely to arise. These are: |
| |
• ‘A doctor’s performance has harmed patients or put patients at risk of harm’
• ‘A doctor has shown a deliberate or reckless disregard of clinical responsibilities towards patients’
• ‘A doctor has abused a patient’s trust or violated a patient’s autonomy or other fundamental rights’
• ‘A doctor has behaved dishonestly, fraudulently or in a way designed to mislead or harm others’
• ‘The doctor’s behaviour was such that public confidence in doctors generally might be undermined if the GMC did not take action’
• ‘A doctor’s health is compromising patient safety.’
|
| 25.165 | This list of circumstances is helpful. However, it seems to me that case examiners need some specific examples by which to gauge whether the threshold is crossed in the particular case under consideration. What is required is a comprehensive set of case examples showing where the threshold should lie. |
| 25.166 | If the case examiners consider (taking into account all the above) that the allegation is of sufficient seriousness to have the potential to justify action on registration, they must then consider whether there is a realistic prospect of establishing the case evidentially. |
Consideration of the Evidence |
| 25.167 | The September 2004 draft CE/IC Guidance sets out advice on how case examiners should approach the question of whether there is a ‘realistic prospect’ of establishing, in an individual case, that a doctor’s fitness to practise is impaired to the required degree. The advice is in terms almost identical to those in the aide memoire which was first produced in January 2001 for the guidance of the PPC (although the aide memoire spoke of a ‘real’, rather than a ‘realistic’ prospect). The September 2004 draft CE/IC Guidance includes a reminder that the criminal standard of proof applies in cases heard by a FTP panel. |
| 25.168 | The advice contained in the September 2004 draft CE/IC Guidance that case examiners should not ‘normally’ close a case for evidential reasons without obtaining legal advice appears to extend only to cases which carry a presumption of impaired fitness to practise. It seems that, in all other cases (most of which will be cases involving allegations about clinical practice), case examiners will be free to form their own views about evidential issues, guided by the modified aide memoire. |
Comment |
| 25.169 | Assessing the weight of evidence is essentially a legal process and can be quite difficult for non-lawyers. It may be that, in cases involving evidential issues, case examiners will seek the advice of the lawyers in their investigation teams. However, I find it worrying that they are not specifically advised to do so. It seems to me also that the modified aide memoire may be unhelpful in some respects. The reminder that the standard of proof is the criminal standard is likely to create the impression that, if the evidence is disputed by the doctor, the allegation will not be capable of proof, whereas, in fact, if the FTP panel believes the account given by the maker of the allegation, it might find the allegation proved. |
| 25.170 | The September 2004 draft CE/IC Guidance also offers advice about the circumstances in which case examiners should consider whether a warning might be appropriate. I shall refer to that advice later in this Chapter. |
The Possible Outcomes of the Consideration of a Case by the Case Examiners |
| 25.171 | The November 2004 Rules provide that medical and lay case examiners will have a number of options when deciding how to dispose of a case which is referred to them. First, they may direct that the case should not proceed further. It seems that, if the case examiners direct that a case should not proceed further, it will be open to them also to direct that a letter of advice should be sent to the doctor. This option is not mentioned in the Rules or in the September 2004 draft CE/IC Guidance. I shall consider this issue further below. |
| 25.172 | Second, the case examiners may decide to issue a warning to the doctor or to refer the allegation to the IC for an oral hearing, with a view to a warning being issued. I shall discuss that option further below. Third, the case examiners may refer the allegation for determination by a FTP panel. I shall deal with the procedure following such a referral later in this Chapter. Finally, the case examiners may recommend that the doctor should be invited to comply with undertakings following an assessment of his/her performance or health directed by a member of the GMC staff. If such an invitation is issued and if the doctor confirms that s/he is prepared to comply with such undertakings, the case examiners will cease consideration of the case and the case will then be dealt with by way of voluntary undertakings. I shall deal with this option later in this Chapter. |
| 25.173 | Both case examiners must agree on how the case should be dealt with. In the absence of agreement, the case will automatically be referred to the IC. |
Letters of Advice |
| 25.174 | I have explained in Chapter 19 how, under the old FTP procedures, it was open to a medical screener, having taken a decision not to refer a case to the PPC, to send a letter of advice to a doctor under Chapter XV of GMC Standing Orders. The PPC also sent warning letters and letters of advice in some cases which it had decided not to refer to the PCC for a hearing. |
The 2003 Proposals |
| 25.175 | The 2003 draft Rules contained no specific provision for the sending of a letter of advice in a case which a case examiner had decided should not proceed further. Nevertheless, the Guidance which accompanied the 2003 draft Rules stated: |
| | ‘Where a case is concluded with no further action, the Committee (the IC) or Case Examiner may issue advice about the practitioner’s future practice or behaviour in such terms as they see fit.’ |
| 25.176 | The 2003 draft CEDF contained a section in which a case examiner was to record his/her decision whether or not to issue a letter of advice, together with reasons for the decision. The 2003 draft CEDF suggested that a letter of advice would probably be appropriate where a case examiner was ‘satisfied that the case does not meet the investigation stage test and does not warrant a warning’. Three examples were suggested of circumstances in which it might be appropriate to send a letter of advice. The first example was where there had been a ‘minor breach in professional standards’, such as unreasonable delay in sending a promised medical report. The second example was where the doctor had been convicted of a ‘minor criminal offence (such as breach of the peace)’. The third example was where the ‘issues’had ‘been resolved locally to the satisfaction of the parties’ and ‘confirmation of any advice given locally would be useful’. The FPPC’s paper which was considered by the Council at its meeting in November 2002 had suggested that the terms of any letter of advice sent to a doctor should be disclosed only to the doctor and to the complainant. The letter would not be disclosed to the doctor’s employer or PCO. Nor would it be disclosed to anyone who subsequently enquired about the doctor’s registration status. It was, however, intended that a letter of advice (together with any complaints against the doctor received locally) would be considered as part of the appraisal process. |
The 2004 Position |
| 25.177 | The May and July 2004 draft Rules also contained no provision for the sending of letters of advice. Nor do the November 2004 Rules. The June 2004 draft Case Examiner Guidance and the September 2004 draft CE/IC Guidance make no mention of letters of advice. All references to letters of advice have also been removed from the June and September 2004 drafts of the CEDF. The June 2004 draft CEDF did request a case examiner, if s/he had decided that a case should not proceed further, to note the main points to be covered in the letter to be sent to the doctor. It seemed possible that case examiners would be instructed by the GMC that they might include in those points some form of advice to the doctor as to his/her future conduct. That section has been omitted from the September 2004 draft CEDF, which is much shorter than previous versions. |
| 25.178 | In a letter to the Inquiry, the GMC has stated: |
| | ‘... it will of course remain open to the GMC to provide advice to a doctor in any terms that it considers appropriate when no formal action (including a warning) is required, but to do so is considered desirable in the interests of maintaining good professional standards. It is anticipated that this power will be used only very sparingly and the GMC is considering how best to reflect this in its internal guidance to staff including Case Examiners.’ |
| 25.179 | It appears, therefore, that, despite the fact that all reference to letters of advice has been removed from the draft CEDFs and Guidance, it is contemplated that, on occasion, cases will be dealt with by sending a letter of advice. Whether this power will be used sparingly in future remains to be seen. Under the old procedures, many such letters were sent. |
Comment |
| 25.180 | There is nothing intrinsically wrong with the sending of a letter of advice; indeed, it may be a good idea, provided that it is not allowed to become a ‘soft option’ and an alternative to referring a case which, in reality, satisfies the investigation stage test and should therefore be referred to a FTP panel. But, if it is thought to be of value to retain letters of advice, the option should be written into the Rules and proper criteria should be agreed and established for the sending of such letters. Their use should be audited, so as to ensure that they are being used appropriately. It is not acceptable to start the new procedures with part of the process going on outside the Rules. If letters of advice are to be retained, they may - indeed should - be of relevance to the process of revalidation. It would be unfair to doctors if there were inconsistency of treatment in the sending of letters of advice. In the 2001 Consultation Paper, the GMC singled out the lack of transparency in relation to letters of advice as one of the weaknesses of the old system. The present uncertainty has done nothing to remove the obscurity of the old arrangements. |
Warnings |
| 25.181 | A novel feature of the new FTP procedures is the mechanism for issuing formal warnings to doctors at the investigation stage. Section 35C(6) of the 1983 Act provides that, if the IC decides that a case ought not to be considered by a FTP panel, it may issue a warning to the practitioner about his/her future conduct or performance. Because there is no express statutory test to be applied to the question of whether a case ‘ought not’ to be considered by a FTP panel, the circumstances in which a warning may lawfully be given are not clear from the statute. |
The Circumstances in Which a Warning May Be Issued |
| 25.182 | The GMC’s intention is that a warning will be available where an allegation does not, in the view of the case examiners or the IC, warrant referral to a FTP panel, but where there is evidence to suggest that the doctor’s behaviour or performance has fallen below acceptable standards to a degree warranting formal censure by the GMC. The September 2004 draft CE/IC Guidance states: |
| | ‘There will also be cases that demonstrate significant departures from Good Medical Practice not so serious as to warrant action on a doctor’s registration but requiring a formal response from the GMC in the interests of maintaining good professional standards and public confidence in doctors. The appropriate response in these types of cases will be a warning.’ |
| 25.183 | A warning will ‘remain valid’ for a period of five years. No decision has yet been made by the GMC about whether a warning should ever be regarded as ‘spent’ (and, therefore, not discloseable) after five years. The fact that a warning has been issued will be disclosed to the doctor’s current employer or PCO and to the person or body who brought the allegation to the attention of the GMC. In addition, it will be disclosed to any prospective employer. It will also be disclosed to any enquirer during the period of the warning’s validity. As I understand the position, an ‘enquirer’ would have to make a specific enquiry about whether a doctor had a FTP history (not just whether s/he was registered or whether there were restrictions on his/her registration) before the fact of the warning would be revealed. At a meeting of the Council in July 2004, Mr Scott told members how office staff provide such information. They answer only each question specifically asked and do not volunteer any additional information. |
The 2003 Guidance |
| 25.184 | The 2003 draft Case Examiner Guidance advised case examiners to consider four questions when deciding whether a warning was appropriate. These were: |
| |
‘a. Was the doctor’s conduct incompatible with his standing as a doctor?’The 2003 draft Case Examiner Guidance suggested that a warning might be appropriate following conviction for certain categories of criminal offence (e.g. an isolated incident of shoplifting), where the offence had not taken place in a professional context.
‘b. Has the doctor failed to address concerns raised by local management?’It was suggested that a warning might be ‘a means of underlying (sic) the seriousness of the concerns and stressing that any misconduct must not be repeated’.
‘c. Is there a need to flag up our concerns with the doctor’s employer(s)?’The 2003 draft Case Examiner Guidance suggested that the fact that a warning would be disclosed to the doctor’s employer(s) would have the effect of ‘ensuring that employers are aware that aspects of the doctor’s practice may need to be monitored’.
‘d. Are there any identifiable areas of a doctor’s practice in need of assessment or retraining?’
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| 25.185 | The 2003 draft Case Examiner Guidance went on to state: |
| | ‘A departure from Good Medical Practice may be viewed as sufficiently significant to justify a warning where it is serious enough for us to mark the fact that the doctor’s behaviour was unacceptable and must not happen again, but that it would be disproportionate to take action against the doctor’s registration.’ |
| 25.186 | At the Inquiry’s hearings, it was suggested to witnesses from the GMC (in particular, Sir Graeme Catto and Mr Scott) by Leading Counsel to the Inquiry that the new power to issue formal warnings might make it tempting for case examiners or the IC, in a case where they were uncertain whether a FTP panel would find the facts proved, to opt for the ‘bird in the hand’ and to issue a warning in a case that ought really to be referred to a FTP panel. This possibility did not appear to have occurred to any of the witnesses previously, although it did appear to the Inquiry to be an obvious danger. |
The 2004 Guidance |
| 25.187 | The September 2004 draft CE/IC Guidance makes clear that a warning should be considered only where the case examiners have already decided that the investigation stage test has not been met. Moreover, case examiners are advised that, where they consider that allegations are ‘borderline between action on registration and a warning’, the presumption should be that the allegations should be referred to a FTP panel. It seems to me that this draft Guidance, if adhered to, satisfactorily deals with the Inquiry’s concern. |
| 25.188 | The June 2004 draft Case Examiner Guidance advised also that, where case examiners had decided that the allegations met the investigation stage test, they should not permit any mitigating factors to persuade them to issue a warning, instead of referring the case to a FTP panel. Rather, it should be left to the FTP panel to consider any mitigating factors and the appropriate circumstances. I considered that to be a welcome change in the advice because, as I mentioned earlier, the Inquiry’s examination of cases under the old procedures showed that screeners and the PPC often took mitigation into account when they should not have done. However, the advice has been omitted from the September 2004 draft CE/IC Guidance. Indeed, the only reference to mitigation occurs when case examiners are advised that, once it has been established that the investigation stage test has not been met, they should consider all the evidence (including mitigation) when deciding whether or not to issue a warning. In my view, the advice on mitigation given in the June 2004 Guidance should be reinstated. The GMC must be alert to the potential problem that the case examiners may take mitigating factors into account inappropriately. They should monitor case examiners’ decisions to ensure that they are not mistakenly taking mitigating factors into account and issuing warnings in cases that should have gone to a FTP panel. This is important in the interests of protecting patients. |
| 25.189 | The September 2004 draft CE/IC Guidance makes no reference to the four questions which the 2003 draft Guidance had suggested the case examiners should consider when deciding whether a warning was appropriate. Nor does it give any further guidance on how a decision whether or not to issue a warning should be approached. The June 2004 draft Case Examiner Guidance had included a few examples of the types of case which might attract a warning. These were brief and contained no detail. They have been omitted from the September 2004 draft CE/IC Guidance. In my view, they should be reinstated because the provision of examples is always helpful. However, what is really needed is not these brief examples but more detailed case studies, covering a much wider range of topics and demonstrating, by the use of more than one case of a similar nature, where the dividing line has been - properly - drawn and why. |
Procedure: Notice to the Doctor: the 2003 Proposals |
| 25.190 | The 2003 draft Rules set out an elaborate procedure for the issuing of warnings. Where the IC or a case examiner considered that a warning might be appropriate, the doctor would be given notice that a warning was being considered and would be informed of his/her right to make representations in writing. Although the 2003 draft Rules were silent on the point, it appeared that, if no representations were received, or if the doctor indicated that s/he was prepared to accept the warning, a written warning would be issued. If the doctor contended that a warning should not be issued, his/her representations would be considered by an IC panel or a case examiner, and a decision would then be taken as to whether an oral hearing, to determine whether the warning should be issued, was desirable. The question of whether there should be an oral hearing was a matter for a case examiner or the IC panel; there was no right to such a hearing. |
Procedures: Notice to the Doctor: the 2004 Position |
| 25.191 | Under the May 2004 draft Rules, the provisions for the issuing of warnings were simplified. There was to be no opportunity for the doctor to make written representations specifically on the question of whether a warning should be issued. Presumably, it was intended that the case examiners would take into account, when making their decision, any written representations which had been submitted by the doctor when s/he had first been invited to comment on the allegation made against him/her. Doctors still had no right to insist on an oral hearing. |
| 25.192 | The July 2004 draft Rules (which are reproduced in this respect by the November 2004 Rules) reinstated the opportunity for a doctor to make written representations once the case examiners have indicated that they are considering issuing a warning. The case examiners must consider those written representations when deciding how to deal with the case. The July 2004 draft Rules conferred for the first time a right on a doctor to an oral hearing if s/he chose. This change was intended to meet the concerns of doctors about the new warning procedures. The right to a hearing has been retained in the November 2004 Rules. |
The Case Examiners’ Decision |
| 25.193 | Once the doctor’s written representations have been received (or if s/he does not respond to the invitation to provide representations), the case examiners have three options for dealing with the case. The first option is to issue a warning to the doctor. The November 2004 Rules provide that, if the case examiners are satisfied that the allegation ‘ought not to be considered by a FTP Panel’ and if the doctor does not make any representations, or if it appears from his/her representations that s/he has not contested the facts upon which the allegation is based, the case examiners may, if they think fit, issue a warning to the doctor. |
| 25.194 | The second option is to refer the doctor for an oral hearing before the IC. Case examiners must exercise this option if the doctor requests an oral hearing before the IC, or if they consider it appropriate for some other reason to refer the case for an oral hearing. The third option (which is not explicitly set out in the relevant rule but must, I think, be open to case examiners) is to direct that the case should not proceed further. A direction that a case should not proceed further may be made if it is clear that the doctor is disputing the facts and if the case examiners do not consider, having taken into account the doctor’s representations, that it is appropriate to refer the case to the IC for an oral hearing. |
| 25.195 | It should be noted that there is no provision for the maker of the allegation to be notified of the fact that a warning is being considered. Nor is there any provision for the maker of the allegation to be shown, or asked to comment on, the doctor’s written representations as to whether a warning should be issued. |
Comment |
| 25.196 | The process by which a warning may be issued following the decision by a case examiner that that would be an appropriate course is potentially complex, time-consuming and expensive. It may result in a hearing before an IC panel which is virtually as resource-intensive as a full hearing before a FTP panel. It may even result in a FTP panel hearing, if new evidence emerges at the IC panel hearing. I shall make some comments and suggestions about this procedure when I have completed my description of all the processes by which a warning may be given during the investigation stage. |
Cases Dealt with by the Investigation Committee |
| 25.197 | I have explained that, under the November 2004 Rules, IC panels will deal with only two categories of case. The first category consists of cases where the two case examiners have been unable to agree. The second consists of oral hearings for the purpose of deciding whether a warning should be issued. |
| 25.198 | The GMC will maintain a list of medical and lay associates, who will be eligible to act as IC panellists. As I have already explained at paragraph 25.90, although, under the Constitution Rules 2004, GMC members will be eligible to sit on IC panels, it is not yet certain whether they will in fact do so. There is a division of opinion among Council members about whether this is appropriate. Whatever the long-term outcome of that debate, IC panels will be chaired by panellists who have undergone assessment and have been appointed for the purpose. Chairmen of panels may be medical or lay. The legal quorum of an IC panel will be three, including a medical and a lay panellist. |
| 25.199 | Decisions of IC panels are to be reached by a simple majority. If the votes are equal, the decision will go in favour of the doctor. IC panels will sit with a legal assessor when considering warnings. |
Cases Where the Case Examiners Have Disagreed |
| 25.200 | In cases where the case examiners have been unable to agree, an IC panel will decide the case in private and on paper. Neither the maker of the allegation nor the doctor will have the right to attend or to be represented. The panel may adopt one of five courses of action. |
| 25.201 | First, the panel may determine that the allegation should not proceed further. It seems that, if it makes such a determination, it will have the option of sending a letter of advice to the doctor in the same way as the PPC frequently did under the old procedures. I have already expressed concern that there is no mention in the Rules about letters of advice. If they are to be sent, the circumstances in which this will happen should be set out in the Rules and there should be clear criteria for the circumstances in which this will be done. |
| 25.202 | The second option open to the IC panel will be to issue a warning to the doctor without an oral hearing. Where a warning is being considered, the doctor will be given the same opportunity to provide written representations about the issue as if the case examiners had initiated the warning process. The IC panel will then have the option, where the doctor has made no representations or has not contested the facts, of issuing a written warning without a hearing. The third option that the IC panel will have is to decide that an oral hearing should be held in front of a differently constituted panel of the IC. That panel would then decide whether a warning should be issued. Fourth, the IC panel may refer the allegation for determination by a FTP panel. The fifth option arises where the case examiners have failed to agree whether to recommend that a doctor should be invited to comply with undertakings following a performance or health assessment. In that event, the IC panel may determine that the doctor should be invited to comply with such undertakings as the panel thinks fit. |
| 25.203 | The November 2004 Rules give the IC no power to direct that any investigations should be carried out, or to adjourn for investigations to be carried out, when dealing with a case where the case examiners have disagreed. Under the old procedures, the PPC had the power to adjourn for further investigations. Furthermore, an IC panel has no power to direct a health or performance assessment in such cases. In my view, the IC should have these powers and I shall recommend that they be provided. |
Oral Hearings for the Purpose of Deciding Whether to Issue a Warning |
| 25.204 | The 2003 draft Rules provided that an oral hearing held by an IC panel for the purpose of deciding whether to issue a formal warning was to be conducted in private. As for the procedure to be adopted at such a hearing, the 2003 draft Rules would have permitted the Presenting Officer (i.e. the person presenting the case for the GMC, usually a solicitor or counsel) to outline the allegations against the doctor, but not to adduce any evidence. By contrast, the doctor or his/her representative was to have the right to adduce oral or documentary evidence and to address the panel on the appropriate outcome. The 2003 draft Rules provided no opportunity for the Presenting Officer to make further submissions about the evidence adduced by the doctor or about any representations that had been made on the doctor’s behalf. The draft 2003 Rules specifically stated that the maker of an allegation had no right to appear before the IC panel and, indeed, the relevant person or body would almost certainly have been unaware that the oral hearing was being held or, indeed, that the possibility of issuing a warning was being contemplated. The IC panel was to be required to give only ‘brief reasons’for its decision, which would have been communicated subsequently to the maker of the allegation. |
| 25.205 | At the time of the Inquiry’s hearings, I had some concern about the proposal to hold these oral hearings in private. A significant - and very welcome - change introduced by the May 2004 draft Rules (and reproduced in the November 2004 Rules) is that oral hearings in relation to warnings are now to be held in public. I was also concerned at the proposed procedure at such hearings, which was to be wholly one-sided, with only the doctor being permitted to adduce evidence. This arrangement was changed by the May 2004 draft Rules, which would have permitted the Presenting Officer to adduce any relevant oral or documentary evidence and to make further submissions after the doctor had given his/her evidence. This would have disposed of most of the concerns I had about the one-sided nature of the process. If there had been provision for the maker of the allegation to attend the hearing, to give evidence if appropriate and otherwise to provide information to the Presenting Officer, my concerns on that score would have been completely allayed. |
| 25.206 | The July 2004 draft Rules (reproduced in the November 2004 Rules) introduced yet further changes. Now, the Rules provide that, once the Presenting Officer has outlined the allegation and the facts upon which it is based, the doctor may respond to the allegation. Both the Presenting Officer and the doctor may adduce any relevant oral or documentary evidence only ‘where the Committee considers such evidence is desirable to enable it to discharge its functions’. The Presenting Officer may then make such further submissions as the IC panel shall allow. |
| 25.207 | The effect of these changes is that it is now wholly within the discretion of an IC panel to decide whether or not oral evidence is called or documentary evidence is admitted. The nature and extent of the evidence to be admitted or called is also within the panel’s discretion. The Guidance which accompanies the November 2004 Rules states that: |
| | ‘... there is a presumption that evidence will not be received, and this is at the discretion of the Committee (i.e. the IC panel) considering the case. As the Committee has no power to impose a sanction which will affect the practitioner’s registration, it will generally be the case that the practitioner’s rights, and the public interest, will adequately be served by a summary hearing of this kind.’ |
| 25.208 | The maker of the allegation will have no right to be notified of the hearing although it is possible that s/he will be called by the GMC to give evidence, if the IC panel permits this. |
| 25.209 | In contrast with the position where the IC panel is seized of a case because the case examiners have disagreed, the IC panel may, before reaching its decision, adjourn for further investigations to be carried out, including an assessment of a doctor’s health or performance. |
| 25.210 | At the conclusion of the oral hearing, the panel can issue a warning or determine that the case should not proceed further. A third option, which arises where new information adduced into evidence at the hearing indicates that to do so would be appropriate, is to refer the allegation for determination by a FTP panel. However, it seems likely that that would be a rare occurrence if it is not intended that evidence should usually be called. |
| 25.211 | The Guidance accompanying the November 2004 Rules states that any disputes of fact at an oral hearing relating to a warning will be decided on the basis of the civil standard of proof. Once it has reached its decision, the IC panel must announce the decision and give its reasons (the November 2004 Rules require ‘reasons’, rather than ‘brief reasons’) for that decision. |
| 25.212 | At the moment, it is impossible to know how these procedures will work in practice. If disputes of fact are to be resolved, the IC panel will have to receive oral and documentary evidence. It is to be hoped that panels will not make findings of fact on the basis of representations alone. If evidence is to be heard, it must be heard from both sides. The presumption that evidence will not be received gives rise to practical problems. If it is not expected that evidence will be heard, witnesses will not be warned to attend the hearing. Of course, the doctor is likely to be there, but it would be quite wrong for the IC panel to allow the doctor to give evidence when the GMC had not even arranged for its witnesses to attend. On the other hand, it would obviously be unsatisfactory if witnesses were to be required to attend, only to find that the IC panel would not permit them to give evidence. It may be that there will have to be a preliminary hearing before the same IC panel to determine what the issues are and whether oral and documentary evidence will be received. It seems to me that, even if oral evidence is not to be heard, the maker of the allegation ought to be entitled to attend. Without the presence of that person, the Presenting Officer may have no one from whom to obtain information in relation to the representations made on the doctor’s behalf and the procedure will inevitably be one-sided. Such a process would not, in my view, provide adequate protection for patients and the public interest. |
Comment |
| 25.213 | These proposed arrangements for the giving of warnings create a potentially complex, time-consuming and expensive procedure. Although it is said that the oral hearing will be more ‘summary’ than that which takes place before a FTP panel, that will not necessarily be so. If evidence is to be admitted, there will be very little difference. It is said that this more ‘summary’ procedure is appropriate and not unfair because the sanction that might be applied does not affect the doctor’s registration. That is true, but a warning is a serious matter, will be disclosed to enquirers and in effect goes into the public domain. The GMC says that warnings will ‘feed into’ the revalidation process, although it is not clear to me at what stage that will happen or what effect a warning would have on whether or not a doctor was revalidated. I note, as a matter of interest, that the 2003 draft Case Examiner Guidance and the June 2004 draft Case Examiner Guidance advised case examiners that a warning should be regarded as a ‘serious sanction’ or a ‘serious matter’. The more recent Guidance omits that advice. Nonetheless, it seems to me that the issue of a warning that is disclosed to anyone who enquires is a serious matter and the fact that the GMC wishes to give doctors the right to an oral hearing shows that it recognises that. The giving of a warning is also an important matter from the public point of view. The GMC has recognised that, by deciding that oral hearings in connection with warnings should take place in public. |
| 25.214 | I mentioned in paragraphs 25.56-25.58 above that, in my view, the GMC’s investigation stage test has been set at the wrong level. Errors of principle such as this usually give rise to practical problems. In my view, the GMC’s present difficulties with the issue of warnings within the investigation stage illustrate that problem. If the GMC were to adopt the investigation stage test that I have proposed at paragraph 25.63, all cases that might warrant a warning would automatically go through to a FTP panel. The case examiners and IC would be applying their minds to objective criteria and not trying to guess what sanction might be imposed. If the case did not pass the investigation stage test, the case would be closed, with or without a letter of advice. There would be no warnings at the investigation stage and no need to devise a special ‘summary’ procedure with discretion to admit evidence and all the practical problems that will create. |
| 25.215 | It seems to me that the practical problems of the proposed oral hearings are very significant. If the discretionary question of whether evidence is to be received is to be decided by the IC panel in every individual case, there will have to be a preliminary hearing in every case. This will have to take place before the same IC panel as will sit on the substantive hearing; a discretionary decision on the admissibility of evidence cannot be taken by a case manager. The expense will be considerable. The only other option is to have a full hearing in every case. I quite understand the disadvantages in that, especially since there is (theoretically at least) the possibility that, at the end of such a hearing, the case might be referred by the IC panel to a FTP panel, which might involve a rehearing of the same evidence. |
| 25.216 | If the GMC decides to maintain its present position, a number of problems arise, apart from the ones I have already mentioned. I fear that the complexity of the procedure will result in a lot of borderline cases foundering with no action being taken. Case examiners may be tempted not to send cases for an oral hearing if there is a significant dispute of fact, particularly if it is known that the IC has a lot of work. |
| 25.217 | If the present provisions are to be implemented, it is essential that their operation be properly audited. It will be necessary to collect statistics to show how many cases are closed after the invitation for written representations on the giving of a warning has been issued, i.e. without any action being taken. The GMC should analyse which types of case are being dealt with by way of warning and whether this is appropriate. Under the old procedures, letters of advice and warnings were often issued in cases which should have proceeded to a hearing. |
| 25.218 | I do hope that the GMC will consider these observations about the giving of warnings within the investigation stage, together with my concerns about the investigation stage test. The two are closely related and both problems could be resolved in the way I have suggested. |
Cases Where the Doctor’s Fitness to Practise Is or Might Be Impaired by Adverse Health |
| 25.219 | At present, it is envisaged that arrangements which are in many respects similar to the old voluntary health procedures will continue under the new procedures. However, Mr Scott told the Inquiry that the treatment of some health cases would be very different. He said that cases where the issues were only about impairment of health might be dealt with separately under a procedure akin to the old voluntary health procedures. However, health cases with ‘complicating factors’ would not. If, for example, a doctor had convictions for drug offences, then, despite the fact that the case involved health issues, it would have to go to a FTP panel. It would then be open to the FTP panel to direct that the doctor be referred back to the investigation stage to be dealt with by way of voluntary undertakings. When asked how he envisaged that a case such as that of Shipman in 1976 would be dealt with under the new procedures, Mr Scott said that the case would go to a FTP panel. The doctor might thereafter be invited to give voluntary undertakings. I shall comment on this proposed procedure shortly. |
The 2003 Proposals |
| 25.220 | The 2003 draft Rules provided that the power to direct that an assessment of a doctor’s health should be carried out would lie with the IC or a case examiner. They would exercise the power in a case where a question arose as to whether a doctor’s fitness to practise might be impaired by adverse health. |
| 25.221 | The 2003 draft Rules provided that, if the assessment(s) showed that the doctor was (or might be expected in the future to be) not fit to practise, or not fit to practise save on a limited basis or under supervision, or both, the IC panel or a case examiner might then direct the Registrar to invite the doctor voluntarily to undertake to comply with certain conditions, which might include limitations on his/her practice. If the doctor gave the necessary undertakings, the IC panel or case examiner (if satisfied that the undertakings were being observed) would postpone further action on the case. The 2003 draft Rules would have given the IC panel or case examiner power to appoint one or more medical practitioners to supervise the doctor and to provide reports as necessary. The IC panel or case examiner would also have had power under the 2003 draft Rules to direct a further health assessment in order to determine whether it was necessary for the doctor to remain under the supervision of the IC panel or case examiner. The IC panel or a case examiner would also have been given power to invite the doctor to agree to the variation of the conditions with which s/he had undertaken to comply and, when appropriate, to release the doctor from his/her undertakings. If the doctor refused to co-operate, or failed to comply with his/her undertakings or if his/her health deteriorated, the 2003 draft Rules would have given the IC panel or case examiner the power to refer him/her to a FTP panel. |
| 25.222 | All these arrangements would have been very similar to the arrangements under the old voluntary health procedures. The 2003 draft Rules gave the powers previously exercised by health screeners to both the IC and case examiners. In practice, however, it seems likely that the IC would have delegated one or more medically qualified case examiners to assume the role filled, under the old procedures, by the health screeners. |
The 2004 Position |
| 25.223 | The May 2004 draft Rules removed the power to direct a health assessment from both the IC and the case examiners and placed it instead with the Registrar (in practice, the GMC staff). The only exception is that an IC panel may order a health assessment before taking a decision at an oral hearing relating to the issue of a warning. No explanation for this very important change (which has been retained in the November 2004 Rules) is apparent from the documents the Inquiry has seen and it appears that its objective must have been to reduce the workload of the case examiners and, thus, to reduce the number of additional case examiners who would be required to deal with the new arrangements for the double-handling of cases by both a medical and a lay case examiner. Another possible objective was to bring decisions to direct health assessments under staff control so that they could be subjected to financial restraints and service targets. With great respect to the staff - and I entirely accept that they are competent and hardworking and that some of them are very experienced - I cannot think that anyone could have reached a positive conclusion that the quality of decision-making by staff would be better than that by case examiners. Certainly, I am not aware of any evidence upon which such a view might be founded. In short, I cannot think of any reason of principle for making this change. |
| 25.224 | The sequence of events contemplated under the November 2004 Rules appears to be that the staff will direct a health assessment after a decision has been taken to refer a case to a case examiner. The staff may or may not confer with a case examiner before doing so. There is no requirement that they should. Presumably, if a case examiner thinks that there should be a health assessment, s/he will be able to request that one should be directed but s/he will not be able to insist. In my view, this rule should be changed so that case examiners (and an IC panel) can direct that a health assessment should be carried out. Indeed, it seems to me that, except in a case where an issue of health obviously arises and where it is clear from what branch of medicine the practitioner who is to carry out an assessment should come, the decision whether to order a health assessment and by whom it should be carried out should always be taken by a medically qualified case examiner rather than by a member of staff who is not medically qualified. |
| 25.225 | If the doctor fails to submit to or comply with an assessment of his/her health, the Registrar (or the staff exercising his legal powers) may refer the allegation for determination by a FTP panel. There is no requirement to consult with a case examiner before this is done. The FTP panel may then determine whether the doctor’s fitness to practise is impaired and, if it is, may take appropriate action. |
| 25.226 | The May 2004 draft Rules implied (although they did not specifically provide) that, once the report of a health assessment had been received, the staff would, as a matter of course, refer the report to the case examiners. Under the July 2004 draft Rules (and now the November 2004 Rules), however, the Registrar (in practice, the staff) is given a discretion whether or not to refer an assessment report to a medical and a lay case examiner and need do so only if s/he considers it ‘appropriate’ to do so. |
| 25.227 | I assume that the fact that the staff will have a discretion whether or not to refer an assessment report to the case examiners means that they can close the case if it appears to them that the assessment report discloses no evidence that the doctor’s fitness to practise is impaired. The staff never made this kind of decision before. I am concerned about it. In my view, if a case warrants a health assessment, it also warrants a decision by a medically qualified case examiner. It may be that the July 2004 draft Rules and the November 2004 Rules have created a situation that was not intended. The Rules also suggest that the Registrar (or member of staff) can direct an assessment only after s/he has decided to refer the case to the case examiners. If, when the assessment report is available, it is not shown to the case examiners, it is difficult to see how the latter can conclude the case. In my view, this rule should be changed. If a case is to be closed on the basis of a health assessment received, the decision should be taken by case examiners, one of whom will be medically qualified, or by an IC panel. |
| 25.228 | If the staff refer the assessment report to the case examiners and the case examiners take the view that the doctor is not fit to practise, or is not fit to practise except on a limited basis or under supervision or both, or that the doctor has some condition which (though in remission at the time of assessment) may be expected to make him/her unfit to practise in the future, the case examiners may recommend that the doctor should be invited to comply with undertakings. The November 2004 Rules provide for case examiners - not the staff - to make the decision that undertakings should be offered. If the case examiners recommend that undertakings are appropriate, the Registrar (in practice, the staff) will write to the doctor, inviting him/her to agree to comply with the undertakings specified by the case examiners. If the doctor confirms that s/he is prepared to comply with undertakings, the case examiners must ‘cease consideration’ of the allegation. |
| 25.229 | If, when they consider the assessment report, the case examiners agree that undertakings are inappropriate or inadequate for the protection of the public, they have power under the November 2004 Rules to refer the case to a FTP panel. The July 2004 draft Rules provided (and the provision has been retained in the November 2004 Rules) that a doctor should not be offered the opportunity to give voluntary undertakings where there is a realistic prospect that, if the allegation were referred to a FTP panel, his/her name would be erased from the register. This provision is designed to give effect to the observations of the Judicial Committee of the Privy Council in the case of Crabbie v General Medical Council, to which I referred in Chapters 21 and 23. If the case examiners cannot agree between themselves whether the case should be dealt with by way of voluntary undertakings, it will automatically be referred to an IC panel. |
| 25.230 | The May 2004 draft Rules provided (as do the November 2004 Rules) that it should be the Registrar (in practice, the GMC staff), and not the case examiners, who is responsible, in a case where medical supervision is required, for selecting the medical practitioners to act as supervisors and for requesting progress reports as necessary. There is no indication that those progress reports will have to be referred to case examiners. The staff will also assume responsibility for directing that further assessments should be carried out as and when necessary. The November 2004 Rules (like the July 2004 draft Rules) do not provide for any input from the case examiners into that decision. Again, it would appear that these changes in the arrangements are intended to reduce the workload of the case examiners. |
| 25.231 | Moreover, if a doctor fails to give the undertakings sought, or if his/her health deteriorates, or if information is received that otherwise gives rise to further concern regarding the doctor’s fitness to practise, it is the Registrar (in practice, the GMC staff) who will have a discretion to refer the allegation for determination by a FTP panel. There is no requirement to consult with the case examiners before doing so. Decisions as to whether undertakings should be varied or should cease to apply will, however, be taken by case examiners. |
Comment |
| 25.232 | I am very concerned about these arrangements. It is entirely appropriate that the staff should undertake the making of the practical arrangements for the medical and professional supervision of a doctor who is subject of voluntary undertakings, but it cannot be right that the overall responsibility for the doctor’s progress should remain with a staff member. Under the old health procedures, a health screener was responsible for all decisions and provided professional expertise and continuity of attention. In Chapter 22, I reported the evidence of Dr Sheila Mann, who was a health screener from 1996 to 2004. I described the improvements to the health procedures that had been effected within the last few years. I thought (and I think that Dr Mann thought) that the new procedures would operate much as they had done in the past. Dr Mann said that it had been intended that one of the first batch of case examiners appointed should be a psychiatrist, in order to maintain continuity within the health procedures. However, as at December 2003, it had not been possible to recruit a suitable candidate. As a consequence, Dr Mann was concerned that there would not be a sufficient period of overlap to enable her to pass on the benefit of her experience to the new appointee. In March 2004, two of the recently appointed case examiners (one a professor of psychiatry) were appointed health screeners pending the introduction of the new FTP procedures. It is to be hoped that there was an opportunity for them to learn from Dr Mann’s experience. However, as I have said, their future role will be very different from that of a former health screener. It is profoundly disappointing that the GMC should have abandoned its original plans, not, so far as I can see, for reasons of principle but for reasons of expediency. I hope that the GMC will think again. From what I heard from the evidence of Dr Mann, I am quite satisfied that a considerable degree of professional expertise is required in the interpretation of assessment reports. Also, some of the decisions to be taken are of a difficult and delicate nature. They affect the safety of patients and of the public. With all due respect to the staff members, whose competence I do not in any way seek to impugn, these decisions must be taken by appropriately qualified medical practitioners. |
Cases with a Performance Element |
| 25.233 | The new procedures for dealing with cases where an allegation suggests that a doctor’s professional performance is deficient are essentially very similar to those for dealing with health cases. In December 2003, Mr Scott told the Inquiry that he could not imagine that what were then termed the ‘performance procedures’ would operate in anything like the same way in the future as they had in the past. He said that, following a challenge to a doctor’s fitness to practise, a case examiner would consider whether it was necessary or appropriate to order a review of the doctor’s performance. If a performance assessment were undertaken and if the assessment report showed deficiencies in performance and the doctor accepted a statement of requirements, the case would go into ‘consensual disposal’ and would not go to a FTP panel unless the doctor was uncooperative. The arrangements for ‘consensual disposal’ would be very similar to the old voluntary performance procedures. It appears that what Mr Scott had in mind when he said that the performance procedures would be different in the future was not that the practical arrangements would be different but that the underlying philosophy would change. During their evidence to the Inquiry, both Mr Scott and Sir Graeme Catto voiced the intention that the GMC should move away from focussing on the remediation of doctors referred to it and should instead direct its attention towards ‘cases where restriction on registration was appropriate’. |
| 25.234 | As with health cases, the power to take a decision to direct an assessment of a doctor’s performance will, under the November 2004 Rules, lie with the Registrar (in practice, GMC staff) and not, as it would have done under the 2003 draft Rules, with the case examiners or the IC. This is a particularly significant change since, at the time when the new FTP procedures were being formulated, there was doubt about whether the IC would delegate the power to make that decision even to a medically qualified case examiner. It was anticipated that the IC would retain for itself the power to decide whether a performance assessment should be undertaken, at least in some cases. It was intended, however, that, in time, the IC would delegate such decisions to one or more case examiners. That was the situation which appears to have been envisaged by Mr Scott, when he gave evidence to the Inquiry. He spoke as if the case examiners would be taking these decisions. However, their job description did not mention this function. |
| 25.235 | Prior to the May 2004 draft Rules, it was the intention that the IC would assign medically qualified case examiners to take over the role played by the performance case co-ordinators in the old performance procedures. Once a performance assessment had been undertaken and had concluded that a doctor was not fit to practise or not fit to practise save on a limited basis or under supervision or both, a case examiner would have taken over the management of the case. Under the 2003 proposals, the voluntary performance procedures would have remained much the same as under the old procedures, save for some simplification of the procedures by eliminating referrals to, and hearings by, the Assessment Referral Committee. |
| 25.236 | This approach has now been changed and, under the November 2004 Rules, the power to direct a performance assessment will lie with the Registrar (in practice, the GMC staff). Indeed, neither case examiners nor the IC will have any power to order such an assessment save only that an IC panel may order a performance assessment before taking a decision at an oral hearing relating to the issuing of a warning. The powers and function of the staff and case examiners are virtually the same where a performance assessment has been undertaken as when an assessment of health has been carried out. The only difference is that, where a doctor fails to comply with the reasonable requirements of the performance assessment team, the staff will have the power (without consultation with case examiners) to refer the case to a FTP panel for consideration of suspension of the doctor’s registration or of the imposition of conditions on his/her registration. |
| 25.237 | One possible outcome of a case where a performance assessment has been carried out will be the issuing of a warning. A warning is likely to be considered by the case examiners in a case where an assessment report raises a significant cause for concern about a doctor’s practice but not concerns of such magnitude as to warrant referral to a FTP panel. I am concerned about this proposal. Logically, if there is significant cause for concern, the case will have passed the investigation stage test that I have proposed and will warrant referral to a FTP panel. The case examiners or IC could, as an alternative to referral to a FTP panel, invite the doctor to agree to voluntary undertakings. Such a course would be preferable to the issue of a warning. If a warning is issued, there will be no one to follow up the cause for concern and to see whether the doctor has done anything to rectify his/her shortcomings. It may be said that the warning will be communicated to the employer or PCO who will then be responsible for supervision. That may be so and it may be well done or not. However, the GMC will have relinquished responsibility, notwithstanding the existence of ‘significant cause for concern’. |
Comment |
| 25.238 | Under the November 2004 Rules, in cases where a performance assessment has been carried out and where voluntary undertakings are given, the GMC staff will take over many of the functions which, under the old procedures, were exercised by medically qualified performance case co-ordinators. This is a very significant departure from the old arrangements and from those proposed in 2003. It is likely to have a considerable impact on the future operation of the performance procedures. |
| 25.239 | I have already expressed my concern about the changes to the health procedures which I believe will be detrimental to the quality of supervision provided by the GMC. The same concerns arise, for much the same reasons, in respect of the changes to the performance procedures. The professional expertise applied and the continuity of case management by medically qualified case co-ordinators, which were good features under the old procedures, will be lost. I am particularly concerned at the prospect that the staff will be able to close a case without referring it to case examiners. But that is not the only problem. I see from the November 2004 draft Investigation Manual that it is intended that there should be a team of staff dedicated to the provision of performance assessments. So be it. Arranging an assessment is an appropriate function for the staff. Deciding whether there should be one is another matter. Assessments are expensive and a staff member might be put under pressure not to order an assessment for financial reasons. Indeed, there are real reasons to fear that that might be so. The November 2004 draft Investigation Manual refers to ‘performance against service targets’ in respect of both health and performance assessments. |
Disclosure of an Assessment Report to a Doctor’s Employer or Primary Care Organisation |
| 25.240 | One very welcome development that was introduced in the May 2004 draft Rules was a requirement that, on receipt of the report of an assessment of a doctor’s performance, the Registrar should send a copy, not only to the doctor him/herself but also to any person by whom the doctor was employed to provide medical services or with whom s/he had an arrangement to do so. Concern had been expressed at the Inquiry’s hearings (and by the Performance Procedures Review Group, chaired by Dame Deirdre Hine, which reported to the GMC in April 2004) that this information was not given to those persons and bodies with local responsibility for doctors. The report of the Review Group had observed that a performance assessment report ‘cannot be regarded as a private document between the GMC and the doctor’. Receipt of the assessment report would have enabled employers and PCOs to have a better understanding of the nature and extent of the doctor’s problems and to make an informed decision about the steps they should take to deal with those problems. |
| 25.241 | However, this provision was omitted from the July 2004 draft Rules and does not appear in the November 2004 Rules. In its place is a much more limited provision, whereby details of any relevant undertaking (save any relating exclusively to the doctor’s health) will be disclosed to employers and PCOs and to any enquirer. This was done under the old procedures. There is now no mention of disclosure of assessment reports to employers and others. The proposal appears to have been dropped. |
Comment |
| 25.242 | This is extremely disappointing. It is difficult to see how local NHS bodies can properly discharge their clinical governance obligations if they do not have access to this kind of information about the doctors for whom they are responsible. I have found no reference to this change of direction in the briefing papers distributed to Council members prior to the meeting in July 2004 at which the July 2004 draft Rules were approved. I know of no explanation for the change. I can see that information about undertakings is of some value but it cannot compare with the usefulness of the assessment report itself. |
Cancellations of Referrals to a Fitness to Practise Panel |
| 25.243 | As I have explained in Chapter 20, in 2002, 20% of all referrals by the PPC to the PCC were subsequently cancelled by the PPC. Under the old FTP procedures, a decision to cancel required the agreement of the PPC. The complainant had to be consulted about the proposal to cancel; however, this was done only if the complainant was a private individual and not if the case had been referred to the GMC by a public body. |
| 25.244 | It is obviously important that cases that have been properly referred for a disciplinary hearing should not be cancelled without good reason. |
The 2003 Proposals |
| 25.245 | Under the 2003 draft Rules, where the Presenting Officer (usually a solicitor or counsel instructed by the GMC to present the case before the FTP panel) considered, in the light of any evidence which had become available to him/her, that the fitness to practise of a doctor whose case had been referred to a FTP panel or an IOP was not impaired or that, for some other reason, the proceedings before the panel should not be held, s/he could have asked the IC or a case examiner to reconsider the case with a view to cancelling the referral to a FTP panel. It would have been open to the IC, had it wished, to delegate to a case examiner the task of deciding whether the referral of a case should be cancelled. No notice of the request to cancel a referral had to be given, either to the doctor or to the maker of the allegation. Nor was any guidance given as to how the task should be undertaken. |
The 2004 Position |
| 25.246 | The May and July draft 2004 Rules contained significant changes to the proposed arrangements for the cancellation of a referral to a FTP panel or an IOP and these have been retained (with some further alteration) in rule 28 of the November 2004 Rules. A decision to cancel a referral is now to be initiated, not by the Presenting Officer, but by the Registrar (in practice, a member of the GMC staff). That member of staff may refer the case for a decision to any member of the IC (i.e. presumably, under the new arrangements for the composition of the IC, any person whose name appears on the list of persons eligible to sit on an IC panel, including some members of the GMC) or to the President. Those persons will be able to act alone and without consultation with others. The discretion given to them will be very wide. The November 2004 Rules permit a decision to cancel a hearing to be made, inter alia, if evidence becomes available (the May 2004 draft Rules would have required that the evidence be ‘new’ but the July 2004 draft Rules and the November 2004 Rules removed that requirement) that suggests that a doctor’s fitness to practise is not impaired or ‘if it appears that for some other reason, the hearing before the Panel should not be held’. There is still no requirement to notify the maker of an allegation that a cancellation is being considered, still less to consult him/her on whether this should be done. Once the decision has been made, rule 28 requires the Registrar to serve notice of the decision, together with the reasons for it, on the doctor and the maker of the allegation. |
Comment |
| 25.247 | I am very concerned about this new rule for several reasons. First, the grounds on which the discretion exists to cancel a case are extremely wide. They could cover almost any eventuality. For that reason, the power of cancellation is open to abuse. It might be used where somebody (either a member of the administrative staff or a GMC member or another case examiner) is of the opinion that the case examiners’ decision to refer a particular case to a FTP panel was wrong. Provided that a member of staff is willing to initiate the request (and it might be difficult for him/her to refuse if asked), any IC panellist will be able to cancel a referral with no formality whatsoever, without consulting any other member and without even notifying the maker of the allegation. I am concerned that GMC staff, worried about a backlog of FTP panel hearings or about some difficulty in arranging a hearing date or the attendance of witnesses, might invite an IC panellist to cancel a hearing. It is even more worrying to think that it might become known which panellists were prepared to comply with such requests so that they could be ‘hand-picked’. |
| 25.248 | In a recent letter to the Inquiry, the GMC said that the power of cancellation would be used ‘in a small proportion of cases’ where the GMC’s lawyers had advised that the case had no merit and that the hearing should not proceed. However, the Rules, as currently drafted, do not provide that the initiative to cancel a hearing should come from a lawyer, as the 2003 draft Rules did. It seems, therefore, that it must now be envisaged that a cancellation could be initiated by a non-legal member of staff. I am unsure what was meant by the assurance that the power of cancellation would be used in only a small proportion of cases. It was used in as many as 20% in 2002. I can see that improved investigation in the early stages should result in there being fewer cases where evidential problems arise after referral to a FTP panel. However, it remains to be seen how many cancellations will occur under the new procedures. |
| 25.249 | In my view, this rule should be changed. Cancellation of the hearing of a case that has been properly referred should not be undertaken lightly; nor should it be done in obscurity. Such decisions should be taken by a panel of the IC after careful consideration and the reasons for the decision should be formally recorded. The reasons given should be specific to the case and should not be general or formulaic. Both the doctor and the person making the allegation should be notified some time before the meeting at which the matter is to be considered and should be told why cancellation is to be considered. They should have the opportunity to make representations. |
| 25.250 | Whether the GMC adopts the changes I have suggested or resolves to continue with the arrangements it has currently made, there must be very careful monitoring and audit of the numbers of cancellations applied for and granted and the reasons for the decisions. These numbers and the reasons (anonymised as appropriate) should be placed in the public domain on an annual basis. In the past, the number of cases cancelled after referral did not usually feature in the GMC’s annual FTP statistics. That was not acceptable as it provided an incomplete picture of what was actually happening. |
Consensual Disposal of All Categories of Case |
| 25.251 | At its meeting in May 2004, the Council agreed that the GMC should request legislation to enable it to deal with all categories of case by means of ‘consensual disposal arrangements’, i.e. by the doctor giving voluntary undertakings about his/her future conduct or practice. Under the existing Rules governing the new procedures, such consensual disposal will be available only in cases involving a health or performance element. However, if the new proposal is brought into effect, conviction, caution and determination cases - as well as allegations of misconduct - could be disposed of by means of voluntary undertakings. The GMC is to ask the DoH to effect the necessary amendment to the legislation by way of an order under section 60 of the Health Act 1999. Meanwhile, there is to be consultation and detailed work is to be carried out on how such consensual disposal might operate. |
Comment |
| 25.252 | It may be premature for me to comment but I think it would be helpful if I expressed my concerns about this proposal. My first concern is that cases dependent upon reports of convictions, determinations by another regulatory body and allegations of misconduct must, in my view, be dealt with in the public domain. I fear that ‘consensual disposal’ may take place in private. Second, I am concerned, particularly in respect of allegations of misconduct, that there may be no adequate resolution of the issues in dispute. In health and performance cases, there will be assessment reports which set out the nature and extent of the doctor’s impairment of fitness to practise. This will not be so in a case of misconduct. Insofar as there is a dispute about the facts, there is a real danger that the factual issues will be ‘fudged’ by the GMC accepting the doctor’s account of events, including all the mitigation. It may do so in order to avoid the cost and effort of a contested hearing. It may accept proffered undertakings - much as happened in some cases under the voluntary health procedures - on the ground that it is better for the public to be protected by voluntary undertakings than to take the risk that a FTP panel might find that the doctor’s fitness to practise was not impaired or not sufficiently impaired to warrant the imposition of conditions on his/her registration. In my view, the GMC should proceed with extreme caution down the route to consensual disposal in all types of case, at least if the intention is, as I understand it to be, to operate such procedures in the investigation stage. |
| 25.253 | If there is to be consensual disposal in cases of misconduct, conviction and determination, there must be a hearing before a FTP panel sitting in public. In effect, such disposal must take place at the adjudication stage and not as part of the investigation stage. In conviction and determination cases, the FTP panel should be made fully aware of the underlying circumstances. The way in which this could be done might vary according to the nature of the proceedings. There might be a transcript of the previous proceedings. A police officer might give evidence of the circumstances of a conviction. In misconduct cases, there should be an agreed statement of facts on which the maker of the allegation should be entitled to comment in writing. The FTP panel should see both the statement and the representations so that, if it appeared that there was a significant dispute of fact, a full hearing could be held. The agreed statement should be put in the public domain. The FTP panel should have all relevant facts in the GMC’s possession, including of course any previous FTP record. The FTP panel should satisfy itself that the proposed undertakings are sufficient to protect the public and to reflect the gravity of any offence. Afterwards, the doctor’s compliance with his/her undertakings should be monitored and there should be provision for returning the case to the FTP panel in the event of a breach. However, this procedure would differ very little from the procedure now followed, where the doctor makes admissions and conditions are imposed. |
Revival of Allegations |
| 25.254 | Under the old procedures, conviction cases and cases involving complaints about a doctor’s conduct which had been closed by the screeners or by the PPC could be ‘revived’ if the GMC subsequently received notice of another conviction or complaint about the same doctor. The Rules provided for a ‘limitation period’ of two years, after which an earlier report or complaint could not be revived. In Chapter 20, I questioned whether such a comparatively short period adequately protected patients. Cases involving complaints about performance could also be revived; no limitation period was specified in the Rules but, in practice, the GMC operated a ‘cut-off’ after three years. |
| 25.255 | In November 2001, when the new procedures were being developed, it was agreed by Council that it should be possible for a complaint closed at the initial stages of the procedures to be revived in the event of a new complaint being received. However, no such a provision appeared in the 2003 draft Rules, or in any subsequent draft. The November 2004 Rules make no specific provision for revival of allegations. |
| 25.256 | It seems to me that there should be proper provision for the revival of allegations previously closed. One can readily imagine circumstances in which an allegation which seemed relatively minor at the time it was considered assumes greater significance when another similar complaint is received subsequently. This is particularly so in cases involving allegations of deficient performance. It is important in the interests of patient protection that the GMC should, in those circumstances, be able to look at the picture as a whole, rather than being artificially limited to consideration of the subsequent allegation only. If there is to be revival of closed allegations in certain circumstances, it is important that the relevant provisions are contained in the Rules - not least so that doctors may be aware of the possibility of an allegation against them being reopened and of the circumstances in which this might be done. It is, in my view, entirely appropriate that there should be a limitation period after which it should not, save in wholly exceptional circumstances and in the interests of patient protection, be appropriate to reopen a previous complaint. I would suggest that that period should be significantly greater than the two or three years previously operated. I would suggest a period of five years. |
Review of Investigation Stage Decisions |
The 2003 Draft Rules |
| 25.257 | Under the 2003 draft Rules, IC panels and case examiners were to have the power to review one of their own decisions to refer or not to refer a case to a FTP panel or to dispose of the case by means of a warning. Such a review was to take place only where new evidence or information had become available which made such a review desirable for the protection of members of the public or otherwise in the public interest. The doctor was to be consulted and the IC panel or the case examiner was to take into account the doctor’s interests, in addition to the public interest. There was no provision in the 2003 draft Rules for the maker of the allegation to be consulted about the proposal to review a decision - not even a previous decision to refer the case to a FTP panel - even though that person might have been in a position to comment on the new evidence or information and would plainly have had an interest in knowing that a review was to take place. |
Discussion at the Inquiry |
| 25.258 | There was some discussion at the Inquiry seminars in January 2004 about the need for a speedy means of review of decisions taken at the investigation stage. In the past, the great majority of cases reported to the GMC have been closed at a preliminary stage and in private, and it is anticipated that that will continue under the new procedures. It was thought, therefore, that, if public dissatisfaction were to be avoided, there should be some means of reviewing decisions to close cases taken at a preliminary stage. There was a large measure of agreement that such a review should be available both to the maker of the allegation and to the doctor concerned. However, most participants were of the view that the right of a doctor or maker of an allegation to seek a review should be circumscribed in some way. It was feared that, if doctors and complainants had an automatic right of appeal, the GMC would be inundated with unmeritorious applications. I can see the force of that. However, the Inquiry heard that, in the Canadian Province of Québec, any complainant who is dissatisfied with the preliminary decision of the body performing the equivalent ‘screening’ function to that of the investigation stage of the new procedures (the Inquiry Division of the Collège des Médecins du Québec) is entitled to a review by a review panel. Apparently, there is no problem with inundation there. It appears that, if a decision is taken at the ‘screening’ stage not to refer a case to a disciplinary hearing, the complainant receives a letter setting out the reasons for the decision in detail. I suspect that it is because the complainant receives a full and detailed explanation of the reasons for the decision that there are not too many unmeritorious applications for review. |
The 2004 Position |
| 25.259 | The proposed provisions governing reviews changed in 2004. The July 2004 draft Rules removed the power of review from IC panels and case examiners and limited the decisions that will be susceptible to review. This remains the position under the November 2004 Rules. They provide that the President (and only the President) may review a decision not to refer an allegation to a FTP panel, a decision to issue a warning, or a decision by the case examiners to accept a doctor’s voluntary undertakings following a health or performance assessment. There can be no review of a decision by an IC panel or case examiner to refer a case to a FTP panel. Nor, as I read the Rules, may the President review a decision by the Registrar (or member of staff) not to refer a case to a case examiner. |
| 25.260 | There are only two grounds on which a review will be granted. One is that there is information that the GMC has erred in its administrative handling of the case and a review is necessary in the public interest. The second is that there is new evidence or information which makes such review necessary for the protection of the public or for the prevention of injustice to the doctor, or that a review is otherwise necessary in the public interest. It follows that any doctor or maker of an allegation whose request for a review does not fall within those narrow limits but who is nevertheless dissatisfied with the decision will have to apply for judicial review. I am disappointed that the GMC has not felt able to act upon the experience of the Collège des Médecins du Québec, Montreal, and to offer an unfettered right to a review. If, as the GMC intends, makers of allegations which are not going to proceed to a hearing will receive a full letter of explanation of the decision, together with a copy of the CEDF, it would seem that there would be no real danger of an inundation. |
| 25.261 | The doctor and the maker of the allegation must be notified of a decision by the President to review a case and must be provided, where appropriate, with copies of any new evidence received. The November 2004 Rules require that their representations on the proposed review must be sought. Where the President decides to review a decision, he may determine that the original decision should stand or he may refer the allegation to two case examiners for consideration as if it were an allegation being considered by them for the first time. |
| 25.262 | The decision on a review must be notified to the doctor concerned and to the maker of the allegation, together with any other person whom the Registrar considers to have an interest in receiving notification. |
Comment |
| 25.263 | These new arrangements are in some respects a definite improvement on the 2003 proposals. The fact that the maker of the allegation is now involved in this process is a most welcome change. Also, the decision has been taken away from the IC or a case examiner. To have left it in their hands would not have been satisfactory, as there would have been no ‘fresh look’ at the case. Another improvement is that it is not possible under these provisions to review a decision to refer an allegation to a FTP panel. That is welcome, although it may increase the danger of surreptitious cancellations, about which I expressed my concern in paragraph 25.247. I am, however, concerned about the provision that the President alone should exercise these powers personally. There are two reasons for this: one of principle, one of practicality. There would be much to be said for giving the power of review to someone outside the GMC. It would allay public concern that the GMC is a ‘closed shop’ and protects doctors. It would also provide a useful means of external audit. The second reason is that the role of President is already extremely demanding and I do wonder whether it is sensible to impose upon him this additional burden. The amount of work that will be involved is, as yet, uncertain. Some case files are several inches thick. If the President is to reach a personal decision in each case, as opposed to ratifying a decision suggested by a member of staff, he will have to read the whole case file, possibly including close examination of medical records or a performance assessment report. He might find himself driven to delegate the task to others. |
| 25.264 | As I mentioned above, it appears that the present provisions do not allow for a review to right an error made by a member of staff in rejecting an allegation at the earliest stage, before referral to a case examiner. If so, this lacuna should be remedied. |
The Roles of the Investigation Committee and of the Case Examiners
