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 Developments in the Screening Process from 1996 to 1997 Print version Some Problems with the Screening Process 

Reports > The Fifth Report > CHAPTER NINETEEN - The General Medical Council's Conduct Procedures: Screening > 
Developments in the Screening Process since 1998

19.82 Additional medical screeners were appointed, making a total of seven in post during most of 1998 and 1999.

The Case of Toth

The Complaint
19.83 Despite the advice given in the 1997 Screeners’ Handbook, it is clear that some screeners at least did not apply the tests it set out. In March 1998, a medical screener considered a complaint by the father of Wilfred Toth, a five year old boy who suffered from glycogen storage disease. Wilfred had become hypoglycaemic and his father, Mr Arpad Toth, had called the family’s GP, Dr Jarman, who made a home visit. Mr Toth alleged that he and his partner had told Dr Jarman of Wilfred’s condition and of their opinion that he was in urgent need of intravenous glucose. Dr Jarman failed to administer glucose and instead treated Wilfred with sedative drugs. Dr Jarman later denied that he had been informed of Wilfred’s condition or of his need for intravenous glucose. Mr Toth alleged that his untreated condition led to Wilfred’s death a week later. Mr Toth had complained in the first instance to the local Family Health Services Authority (FHSA). A MSC hearing had followed, at which the MSC found Dr Jarman in breach of his terms of service in failing to take account of Mr Toth’s knowledge of Wilfred’s condition. No sanction was imposed. Some time later, a claim for damages in respect of Wilfred’s death was settled on payment by Dr Jarman of the sum of £10,500, a sum which implies an admission of full liability. Mr Toth complained to the GMC about Dr Jarman’s conduct.

The Screening Decision
19.84 Having considered the papers, the medical screener decided not to refer the case to the PPC. A lay screener confirmed that decision. A letter was written to Mr Toth (on 23rd March 1998, i.e. within a year of the production of the 1997 Screeners’ Handbook) explaining the decision:
 
‘There is a clear conflict of evidence between your version of events and that of Dr Jarman’s (sic) on the (matter of disclosure of the need for intravenous glucose). The standard of proof which the GMC works to, by law, is that of beyond reasonable doubt ... Therefore, unless you are able to provide further evidence of a legal standard ... the members have concluded that there is no prospect of your allegations being proved to the required standard, and no further action can be taken.’
  I interpose to say that either the medical and lay screeners or the caseworker who drafted the letter, or possibly all three, seem to have been unaware of the contents of the 1997 Screeners’ Handbook insofar as it related to the approach which screeners should take where there existed a conflict of evidence. If aware of it, they had not heeded its contents. Mr Toth made further representations but, four months later, the same medical screener made a second decision confirming the first decision. On that occasion, the lay screener was not consulted.

The Judicial Review
19.85 Mr Toth sought permission to apply for judicial review in respect of both decisions. The GMC obtained legal advice on the application. The advice was received in August 1998 and was to the effect that the screeners had not followed the correct procedure in making their first decision. It was not the role of the screeners to resolve conflicts of evidence. Moreover, the medical screener had had no jurisdiction to reconsider the complaint after the first decision had been made. Nor, as the Judge subsequently found, was the second decision valid, since no lay screener had concurred in it. Having received that advice, the GMC consented to an order quashing the decisions and directing a reconsideration of the case by a different medical screener. The case went before the High Court because Dr Jarman objected to the reopening of his case on the grounds that it would be unfair to him. Judgement in the case was given in June 2000.
19.86 The Judge, Mr Justice Lightman, considered the meaning of the words used in rule 6(3) of the 1988 Professional Conduct Rules to describe the duty of the screener. That duty was, as I have said, to decide whether the matter ‘need not proceed further’. He contrasted that duty with the function of the PPC, which was, by section 42(2) of the Medical Act 1983, to decide whether the case ‘ought to be referred for inquiry by the Professional Conduct Committee or the Health Committee’. He said that the screener’s role was:
 
‘... to decide whether a negative state of affairs exists, namely whether the complaint need not proceed further (as in the ordinary course it would) to the PPC: the only conclusion on the merits of the complaint required of him before he allows the complainant to proceed is that (as the screener is required to inform the practitioner) the matters stated “appear to raise a question whether the practitioner has committed serious professional misconduct” ’.
19.87 The Judge construed the ‘need’ referred to in rule 6(3) as being ‘the need to honour the legitimate expectation that complaints (in the absence of some special and sufficient reason) will proceed through the PPC to the PCC’. He went on to say:
 
‘The absence of “need”, of which the screener must be satisfied before he can halt the normal course of the complaint to the PCC, connotes the absence of any practical reason for the complaint so proceeding and that for the complaint to proceed to the PCC would serve no useful purpose. There may be no need because there is nothing which in law amounts to a complaint; because the formal verification (i.e. the statutory declaration) is lacking; because the matters complained of (even if established) cannot amount to serious professional misconduct; because the complainant withdraws the complaint; or because the practitioner has already ceased to be registered. Wider questions as to the prospects of success of the complaint as to whether the complainant is acting oppressively or as to the justice of the investigation proceeding further do not lie within the screener’s remit. So far as they may go to the issue whether the complaint ought to proceed they fall within the remit of the PPC. It is not for the screener to arrogate to himself the role of the PPC and decide whether the complaint ought to proceed further, still less to arrogate to himself the role of the PCC and weigh up conflicting evidence or judge the prospects of success. He must respect the role assigned by the Rules to the PPC (for which the PPC is armed with investigative powers) and recognise that his duty is only to act as a preliminary filter before the more substantive role as filter is exercised by the PPC.’
19.88 He observed further:
 
‘In the exercise of their respective jurisdictions the screener and PPC should be particularly slow in halting a complaint against a practitioner who continues to practise; as opposed to one who has since retired, for the paramount consideration must be the public’s protection in respect of those continuing to practise; and they should at all times bear in mind the role of the HC whenever questions arise of impairment of fitness to practise by reason of physical or mental condition.’
19.89 The Judge’s conclusion, in the end, was that it would not be unfair to Dr Jarman if the screener’s decision were set aside and Mr Toth’s complaint were reopened. However, the importance of the case lay in the Judge’s analysis of rule 6(3) and of the screening function. In effect, it threw retrospective light on the process of screening as it had been carried out during the past 30 years, and possibly even longer. It demonstrated that screeners had exceeded their powers when they had based their decision on their view of whether the complaint amounted to SPM (as opposed to whether it could do so) and of whether the evidence was sufficient to prove the case. That is not to criticise them personally. They were not lawyers. They had been doing the job as others had done it before them. But it is surprising that, until 1997, nobody in the GMC had apparently felt handicapped by the absence of any guidance as to how screeners should approach their important task.
19.90 Following the decision in Toth, which was handed down in June 2000, the screening test was changed in August 2000: see paragraph 19.120. However, no corresponding change was made to the 1997 Screeners’ Handbook. Mr Robert Nicholls, a lay member of the GMC who was Chairman of the PPC between November 1999 and June 2003, told the Inquiry that it was his impression that the proportion of cases referred by the screeners to the PPC increased after the decision in Toth because screeners became more cautious about closing cases. That impression is not borne out by the statistics. It is true that the GMC statistics show that the proportion of cases referred by screeners to the PPC rose from 30% in 1999 to 39% in 2000. However, the proportions dropped back again to 27% and 25% in 2001 and 2002. In 2003, 33% of cases were referred. However, the numbers of referrals went up from 466 in 2000 to 600 in 2001. It may be that it was this increase in numbers which gave Mr Nicholls the impression that the proportion of cases referred had increased.

Further Work by the Policy Studies Institute in 1998
19.91 In 1998, Professor Allen and her colleagues were commissioned to carry out a follow-up study. Before starting that follow-up study, they conducted an ‘intervention phase’, during which they advised the GMC on certain changes of procedure which should be introduced, including changes to the screening procedures. The idea of the intervention phase was to identify changes which should be made to the procedures before the PSI team carried out the research which was to form the basis of its 2000 Report.
19.92 In an attempt to cut down the screeners’ workload and to avoid duplication of effort, it was agreed that, from March 1999, screeners should not be sent cases which were considered by the GMC to be clearly outside its remit. Instead, those cases would be dealt with by the GMC staff without reference to a screener. This process of ‘filtering out’ cases by the GMC staff had the effect of increasing (in fact, almost doubling) the proportion of cases referred to screeners which were sent on by them to the PPC. The PSI’s figures show that, in 1999, the screeners referred 25% of the doctors they dealt with to the PPC; in 2000, the proportion was 22%. In 1997 and 1998, the figures had been about 11% and 12%. In the GMC FTP statistics for 1999, this increase was attributed in part to a change in the approach to evidence, which, it was said, had taken place in March 1999, as a result of legal advice (possibly advice received in connection with the case of Toth). From March 1999, screeners no longer considered whether there was ‘sufficient evidence to substantiate the allegation’. Instead, they ‘could decide to close a case only if there was no prospect of obtaining probative evidence’. There does not appear to have been any amendment of the 1997 Screeners’ Handbook to reflect this changed approach. However, if such a change of approach had been instituted in March 1999, it might have contributed to the increased proportion of cases referred by screeners to the PPC.
19.93 In September 1998, it was agreed between the GMC and the PSI team that, unless there appeared to be a risk to the public, screeners should be sent cases only when there was sufficient information available to enable them to make a substantive decision. Members of the administrative staff, rather than the screeners, would assume primary responsibility for identifying any further information that was required and for obtaining it. Only when that had been done would the case be submitted to the medical screener, if appropriate. It was also agreed that, in the absence of a perceived risk to the public, cases involving doctors whose identities had not been established would not be sent to the medical screeners. Before 1998, virtually all complaints received by the GMC were referred to the medical screeners. As a result of these various changes, the percentage of complaints received by the GMC which were referred to the medical screeners decreased. The PSI’s figures show that, in 2001, only 41% of complaints went to the medical screeners. The GMC’s own figures reveal that the percentage dropped to about 35% in 2003.
19.94 In addition, the GMC agreed that a more structured approach to screening should be adopted. Standard forms, to be known as screening decision forms (SDFs), were designed by the PSI team in consultation with the GMC. The SDFs were intended for use by caseworkers and screeners as a prompt to ensure that they followed the essential steps of the decision-making process. They were intended also to be a record of that process and, thus, a tool for analysis in the future. It was hoped that they would promote clarity, consistency and transparency.
19.95 The structure of the SDFs divided complaints into four main categories, namely:
  1. complaints which were suitable for closure by GMC staff without reference to a medical screener
  2. reports of convictions, which were to be referred by medical screeners to the PPC except when they were referred into the health procedures
  3. complaints which ‘by definition’ raised issues of SPM (‘SPM by definition’ cases). These comprised complaints involving dishonesty, dysfunctional conduct, sexual assault or indecency and violence. A requirement was introduced that all such complaints should be referred automatically by medical screeners to the PPC unless the screener felt that there were overwhelming reasons for not doing so.
  4. complaints which required the exercise of discretion on the part of the screeners in deciding whether or not they should be referred to the PPC or to the performance procedures (‘SPM or SDP by discretion’ cases).
19.96Cases falling within category (d) were, in the main, complaints about poor treatment/substandard clinical practice. Screeners were permitted to exercise their discretion in deciding whether to refer such cases to the PPC. The purpose of the introduction of ‘SPM by definition’ was to reduce the proportion of complaints in respect of which screeners were permitted to exercise discretion and, thereby, to promote consistency and to guard against bias and accusations of bias. I shall describe the history of the operation of the ‘SPM by definition’ category later in this Chapter.
19.97The SDFs also required medical screeners to record, in relation to those cases referred to them, an assessment of whether they believed that there was a current or imminent risk to the public arising from the complaint or conviction. The primary reason for this was to assist in the decision whether an interim order (suspending or imposing conditions on a doctor’s registration pending his/her appearance before a FTP committee) might be necessary. At the time the SDFs were first introduced, medical screeners were also required to record their assessment of the seriousness of the doctor’s alleged conduct using a four-point scale. This assessment was intended to form the basis for analysis of screening decisions in the future. If the medical screeners decided that a case did not raise an issue of SPM or SDP, they were required to record their reasons on the SDF.

The 2000 Policy Studies Institute Report

The Analysis of Screening Decisions

19.98Initially, GMC staff and screeners had difficulty in getting into the habit of recording the relevant data on the SDFs. The 2000 PSI Report described the introduction of the SDFs as ‘a painful process’. There was a four-month ‘pilot exercise’ in the early part of 1999. The SDFs were then brought into use on a permanent basis. In the early part of 2000, Professor Allen and her colleagues analysed the contents of the SDFs completed by the medical screeners during the period from 1st July to 31st December 1999.
19.99The PSI team analysed 792 SDFs which had been completed during that six-month period. By that time, the number of medical screeners was seven. The analysis revealed significant variations between the medical screeners in the outcomes of their screening. One medical screener referred 10% of cases that s/he screened to the PPC, while another referred 36%. This suggested that the threshold at which medical screeners felt it appropriate to refer a case on to the PPC differed from screener to screener.
19.100The analysis also demonstrated striking differences between medical screeners’ assessments of risk and seriousness. Two medical screeners considered that there was a current or an imminent risk to the public in one third or more of the ‘SPM by definition’ cases they screened, while two others considered that there was no risk at all in any of the cases they dealt with. In relation to ‘SPM by discretion’ cases, two of the medical screeners (the same two who had identified a risk in a high proportion of ‘SPM by definition’ cases) considered that more than 40% of cases they screened posed a risk. By contrast, three screeners thought that less than 10% of their cases posed a risk. One medical screener rated nearly 90% of ‘SPM by definition’ cases that s/he screened as ‘very serious’, while another assessed only 20% of such cases as ‘very serious’. Classification by medical screeners of ‘SPM by discretion’ cases as ‘not at all serious’ ranged between 28% of the cases handled by one medical screener and 70% of cases screened by another.
19.101It was difficult to draw any firm conclusions from the variations observed because, as became evident during the PSI study, the distribution of cases to screeners was not random. Thus, the differences could have been explained by bias in the distribution of cases, i.e. by some screeners deliberately being given a greater number of serious cases than others. It could also have been that, by chance, certain screeners were allocated cases of a higher degree of risk and seriousness than those allocated to other screeners. However, the PSI team regarded it as unlikely that either of those possibilities could alone have accounted for the wide range of assessments which they observed. They regarded it as likely that the variations were at least partly due to the fact that different screeners were applying different standards and criteria when judging ‘seriousness’ and ‘risk’.

The Need for Agreed Standards and Criteria

19.102The marked variations between screeners in terms of the outcomes of the cases screened, and the extent to which they differed in their assessments of the risk and seriousness of cases, caused Professor Allen and her colleagues to reiterate the need (which they had identified in their first Report) for all those involved in the GMC’s FTP procedures to have a common understanding of the standards, criteria and thresholds to be applied at the various stages of the procedures. They believed that the lack of any such common understanding had led to inconsistency in the past. The analysis of SDFs which they had conducted suggested that screeners were applying their own personal interpretations of the threshold for SPM. As a result, cases which might have been referred to the PPC by one screener were considered not to raise an issue of SPM by another. This lack of consistency applied equally to decisions of the PPC, as I shall explain in Chapter 20.
19.103The PSI team identified a need for detailed guidance that could be understood both by doctors and by the general public. Professor Allen told the Inquiry that, while the GMC’s publication ‘Good Medical Practice’ was ‘absolutely fine’ for the purposes for which it was intended, it was not suitable for use as guidance about what might or might not amount to SPM. She said:
 
‘... “Good Medical Practice” is a mixture of things which really must not be transgressed and which would be very serious and other points which are, for example, being polite to your patients. This on its own could not raise an issue which ought to affect a doctor’s registration presumably; so that you’ve within “Good Medical Practice” a lot of different things at different levels of seriousness ...’.
19.104What was needed, she said, was detailed guidance for those making decisions, with examples of different types of case which might reach different thresholds, thus creating a ‘hierarchy of seriousness’. The 2000 PSI Report recommended that:
 
‘The GMC should ensure that all those involved in the fitness to practise procedures have a common understanding of what does and does not constitute serious professional misconduct. Guidelines should be drawn up to ensure that a clear and agreed definition can be put into operation by all GMC staff, screeners and members of committees. These guidelines should make clear a) what factors should be taken into account in determining the outcome of cases; b) what standards should be applied in reaching decisions; c) at what point cases “reach the threshold of serious professional misconduct” and represent a departure from the standards of conduct expected of doctors “sufficiently serious to call into question a doctor’s registration”.’
19.105The PSI team recognised that the existing confusion and inconsistency about the threshold for SPM gave rise to problems not only within the GMC. It also presented a difficulty for members of the public and public bodies who might wish to make a complaint against a doctor. Accordingly, the 2000 PSI Report recommended that:
 
‘The GMC should develop clear protocols defining the types of cases which do and do not come within the jurisdiction of its fitness to practise procedures. These should be made public and should be available to anyone who wishes to complain about a doctor.’
19.106Professor Allen told the Inquiry that it was clear that there was confusion both inside and outside the GMC about the types of case that were suitable for referral to the GMC. This was why she and her colleagues thought it appropriate for there to be clear protocols, setting out what was and was not likely to raise an issue of SPM or SDP. This would assist the GMC by relieving it of the burden of a lot of inappropriate complaints. It would also spare members of the public the disappointment of having their complaints rejected.

Problems with Complaints about Poor Treatment and Substandard Clinical Practice

19.107Professor Allen and her colleagues considered that particular problems existed in applying the concept of SPM to complaints about poor treatment and substandard clinical practice. I agree with that view. SPM is an appropriate expression when the conduct in question comprises, for example, indecent assault, fraud or the dishonest acquisition of controlled drugs. In the context of clinical practice, the word ‘misconduct’ seems to imply a deliberately or recklessly wrongful act or omission. However, the law is clear that negligence, if serious enough, can amount to SPM. It seems to me that such an expression as ‘deficient clinical practice’ would more comfortably embrace failures which included acts or omissions that were negligent, as well as those which were deliberate or reckless.
19.108Professor Allen reported that, during the period from 1997 to 1999, complaints about poor treatment and clinical practice accounted for about 70% of all the complaints that came to the GMC. She told the Inquiry that there was room for different interpretations where allegations about treatment and clinical practice were concerned. Different interpretations resulted in inconsistency. At the time of writing its 2000 Report, the PSI team found ‘undoubted confusion and inconsistency’ in the way that such complaints were handled. Professor Allen and her colleagues therefore recommended that clinical failures should be graded on a hierarchical scale, ranging from those which could never give rise to a question of SPM to those which would always do so. Criteria should be established by which the seriousness of a complaint should be measured. They believed that these steps would result in a much greater consistency of approach to complaints about clinical treatment.

The Reasons Given by Medical Screeners for Their Decisions

19.109Some limited insight into the approaches of different medical screeners was given by their recorded reasons for concluding that a case did not raise an issue of SPM. Some wrote only brief comments; others gave much more detailed reasons. The most common reason (given in 26% of cases) for screening out a case was that there was ‘no evidence of serious professional misconduct’. Usually, no further reason was given. In 10% of cases, the reason given was that the case did not reach the ‘threshold of SPM’. In some cases, no further explanation was given and it was consequently not clear on what basis the medical screener had made his/her judgement.
19.110The second most common reason (20% of cases) for screening out a case was that the treatment or management of a patient had been ‘reasonable’ or ‘appropriate’. Medical screeners who gave this reason often offered a clear account of the factors that they had taken into account. By this time, the practice had been instituted of seeking a response to a complaint from the doctor complained of before the screening stage. Medical screeners who gave ‘reasonableness’ or ‘appropriateness’ as their reason for rejecting a complaint often referred to the doctor’s response.

The Relevance of the Quantity and Quality of Evidence to Screening Decisions

19.111As I have already said, the 1996 PSI Report had shown that by far the single most important factor in determining whether a complaint went forward for action by the GMC was whether the complaint came from a public body or from a private individual. Complaints from public bodies were much less likely than those from private individuals to result in a screening outcome of no SPM or SDP or of insufficient evidence.
19.112The analysis of screening decisions in the years 1997, 1998 and 1999 carried out by the PSI team showed that this pattern was continuing. Professor Allen and her colleagues pointed out that complaints from public bodies usually contained far more evidence than those from members of the public. This was because those complaints were likely to have been subject to some form of previous investigation or inquiry, whereas the GMC would not, in general, have taken any steps to investigate a complaint made by a private individual. The result was that medical screeners were usually judging complaints from the two different sources on the basis of very different material. The PSI team noted that medical screeners were required only to decide whether a complaint raised an issue of SPM. In other words, if the allegation (if true) would amount to SPM, the case should go forward to the PPC. The PSI team suggested that medical screeners might have attached more weight to the greater level of evidence presented by public bodies than to the apparently less well-supported allegations made by members of the public, despite the fact that the complaints from the two different sources might have raised similar issues. Also, many complaints from public bodies related to matters in respect of which there had already been findings made against the doctor by another body, such as an independent review panel (IRP). The PSI team suggested that these findings might, in some circumstances, have been regarded by medical screeners as adding weight to their judgement that a complaint raised an issue of SPM.
19.113I can see why the PSI team was concerned about these findings and thought that they might show that medical screeners were attaching weight to the amount and orderliness of the evidence available. That would have been wrong. However, I do not think that it should be assumed that they were doing that. It seems to me likely that a higher proportion of cases referred by public bodies would be of a serious nature, simply because the public body had exercised an informed judgement about whether the case should be reported to the GMC. However, I can also see that, if the screeners had become accustomed to seeing well-prepared cases reported by public bodies giving rise to serious issues, there would have been a danger that they would underestimate the seriousness of the allegations contained in poorly prepared cases coming from private individuals. They may also have been fortified by the judgements of other bodies although, it must be said, they did not always follow them. It seems to me that the real problem was that the GMC did not investigate complaints that came in a ‘raw’ uninvestigated state. Such evidence as was available from private individuals was likely to be scanty and might well be poorly presented. It is not at all surprising that more of such cases should fail at the screening stage.

A Change in the Chapter XV Procedures

19.114In 1999, the Fitness to Practise Policy Committee (FPPC) of the GMC decided that use of the Chapter XV procedures should be discontinued. Documents considered at the relevant meeting recorded that the reason for this was that the ‘rather cumbersome process’ could take ‘several months to reach a conclusion’. This was undoubtedly the case. However, Professor Allen and her colleagues noted in the 2000 PSI Report that it had been clear for some time that some cases which raised issues of SPM had not been referred to the PPC but were instead being dealt with under Chapter XV. They said that the FPPC had shared their concern about this, and that this concern had been a factor in the decision to discontinue the Chapter XV procedures. The fact that the medical screeners might have been using Chapter XV procedures to deal with cases that raised issues of SPM would be particularly concerning as, for the Chapter XV procedures to have been invoked in the first place, these must have been cases in which the evidence was not disputed by the doctor concerned. Such cases should plainly have been referred to the PPC.
19.115The July 2000 Standing Orders contained a revised version of Chapter XV. This provided for cases where the medical screener considered that the doctor’s conduct or professional performance did not raise a question of SPM or SDP but where the conduct appeared to fall short of acceptable standards as laid down in ‘Good Medical Practice’ or other published GMC guidance and where it was desirable in the public interest that the doctor should be given advice. In such cases, the revised version of Chapter XV provided that the medical screener should consult a lay screener on the question of whether the doctor should be given advice and, if so, on the terms of the advice to be given. If the screeners decided to send a letter of advice, this was done. There was no opportunity, as there had been under the old Chapter XV procedures, for the doctor to object. Letters of advice were confidential, save that complainants were told that a letter had been sent and were informed of the terms of the letter. A letter of advice did not form part of the doctor’s FTP history, either for internal GMC purposes or in response to an external enquiry about the doctor’s FTP history.

Other Changes Occurring in 1999

19.116In November 1999, during the time that the PSI team was carrying out its study, Dr Steel retired as a medical screener and as Chairman of the PPC. Meanwhile, the GMC had decided, in anticipation of the coming into force in October 2000 of the Human Rights Act 1998, that the functions of the screeners and the PPC should be separated. From November 1999, screeners (medical, health and lay) were no longer eligible to sit on the PPC or to attend meetings of the PCC as observers. The President was to be the Chairman of the PPC or, if he chose not to act in that capacity, some other GMC member was to be appointed by him. Mr Nicholls became acting Chairman of the PPC on Dr Steel’s retirement. His appointment as Chairman was confirmed in January 2000. In August 2000, the Rules were changed to reflect the changes in constitution which had already been put in place. From November 1999, the role of ‘principal screener’ was abolished and all medical screeners were instead given equal status.

After the 2000 Policy Studies Institute Report

19.117The 2000 PSI Report was considered at a Council meeting on 11th and 12th July 2000. The briefing paper prepared for the meeting noted that the changes which had been made to the screening process in response to the 1996 PSI Report had ‘produced substantial improvements in the robustness of the procedures’. No direct mention was made of the variations between screeners’ decisions which had been revealed by the analysis of the SDFs reported in the 2000 PSI Report. Nor was there any specific mention of the recommendation which had been central to the 2000 PSI Report, namely that it was essential, in order to achieve consistency and fairness, that standards, criteria and thresholds should be agreed and applied by all those charged with making decisions about what constituted SPM. The briefing papers for the Council meeting did, however, acknowledge that the 2000 PSI Report had concluded that GMC processes did ‘not match the principles of good decision making’and that there were ‘anomalies in outcomes identified in the quantitative analysis’. Members of the Council were invited to agree that the recommendations contained in the 2000 PSI Report should be addressed by the FPPC as a matter of urgency. I shall consider later in this Report what, if any, progress has been made on the central recommendation relating to the establishment of commonly agreed standards.
19.118Also in July 2000, the GMC introduced a procedure whereby, before a complaint was screened, the doctor’s response to the complaint was disclosed to the complainant and the complainant’s comments on the doctor’s response were invited. Since 1997, screeners had had the complaint and (usually) the doctor’s response, but had had no comment on the doctor’s response from the complainant. This could have had a somewhat one-sided effect. From July 2000, a practice was introduced whereby the complainant was invited to comment and any comments submitted by him/her were sent to the doctor for his/her further observations. The complainant’s comments, as well as the doctor’s further observations, would be made available to the medical screener. At about the same time, the 1988 Professional Conduct Rules were changed to remove the power of the medical screener to direct that an explanation should not be given to a complainant of a decision to reject his/her complaint.
19.119In August 2000, the 1988 Professional Conduct Rules were amended to provide that the GMC should appoint to act as medical screeners the President (unless he wished to sit on the PPC, the PCC or the HC or for any other reason did not wish to act as a medical screener) and ‘such other medical members of the Council as the President shall nominate’. The 1988 Professional Conduct Rules (as amended) also required the President to nominate (and the Council to appoint) the lay screeners.

A Change in the Screening Test

19.120I have already said that, after the judgement in Toth had been delivered in June 2000, steps were taken to amend the statutory screening test. This was effected on 3rd August 2000, when rule 6(3) of the 1988 Professional Conduct Rules was amended to read:
‘The medical screener shall refer to the Preliminary Proceedings Committee every case submitted to him under this rule unless -

(a) he decides that a question as to whether the practitioner’s conduct constitutes serious professional misconduct does not arise, and a lay member appointed under rule 4(5) agrees ...’.
 The only other exceptions to the general rule were cases in which no statutory declaration had been provided by the complainant and cases referred by the medical screener to the health procedures. These cases did not have to be referred to the PPC.
19.121It does not appear that this important change in the screening test was reflected in any amendment of the 1997 Screeners’ Handbook. It seems that either the screeners must have continued to use the Handbook (despite the fact that it was by this time out of date in a number of respects) or that the Handbook must have fallen into disuse. Subsequent events suggest that the screeners (or some of them) were probably unaware of the change in the rule 6(3) test which had occurred in August 2000.

The Case of Holmes

19.122The case of R v General Medical Council ex parte Holmes and others6 was decided by Mr Justice Ouseley on 27th April 2001. It concerned applications for judicial review, challenging, inter alia, decisions by medical and lay screeners and by the PPC.

The Complaints

19.123The case concerned complaints by the partner, Ms Caryl Nancy Holmes, and the parents (I shall refer to the three of them as ‘the claimants’) of Mr Derrick Marcus Dean, who died on 26th July 1995, aged 34, from a colloid cyst on the brain. The complaints related to the standard of care given to Mr Dean by his GP, Dr Rahman, and by a deputising doctor, Dr Sengupta. Mr Dean had seen Dr Rahman at his surgery two days before his death. On the evening before he died, he had been seen at his home by Dr Sengupta. He had subsequently been admitted to hospital where he died. The precise nature of the failure of the standard of care alleged by the claimants is not clear from the judgement. It seems likely that the claimants alleged failure by both doctors to appreciate the seriousness of Mr Dean’s condition.
19.124Ms Holmes made a complaint against Dr Sengupta to the FHSA. A complaint was added later against Dr Rahman. In March 1996, the MSC decided that Dr Sengupta had breached his terms of service but that Dr Rahman had not. Ms Holmes appealed to the Secretary of State (SoS) for Wales against the decision in Dr Rahman’s case. In June or July 1998, the SoS for Wales notified the claimants that he had allowed the appeal and had found that Dr Rahman had breached his terms of service. The SoS for Wales directed that Dr Rahman’s case should be referred to the GMC. The claimants then requested the GMC to consider Dr Sengupta’s conduct also. Thus the GMC was seized of two complaints, both backed by a finding of a breach of terms of service. I do not know whether the breach by one doctor was more serious than that by the other, although it appears that the punishments imposed were different.
19.125Some time between January and March 1999, the complaint against Dr Rahman was considered by three screeners: two medical screeners and one lay screener. They decided that the case should not be referred to the PPC. Dr Sengupta’s case was considered by the same medical screeners and by a lay screener. In Dr Sengupta’s case, the medical screeners decided that the case should not proceed. However, the lay screener disagreed and the case was therefore referred to the PPC. On 9th September 1999, the PPC decided that the complaint against Dr Sengupta should not proceed to the PCC. The claimants challenged that decision of the PPC; I shall deal with that part of the case in Chapter 20. They also challenged the decisions of the screeners in Dr Rahman’s case.

The Decision of the Screeners in Dr Rahman’s Case

19.126At some stage, probably in the course of the judicial review proceedings, the GMC disclosed a number of documents that shed light on the reasons for the screeners’ decision in Dr Rahman’s case. The first was a note from a caseworker, which had probably formed part of the memorandum usually prepared by members of staff for the assistance of the screeners. In the note, the caseworker observed:
 
‘Dr Rahman has been punished more harshly than Dr Sengupta. Though he should have arranged some follow up for Mr Dean, I do not think his actions constitute SPM and recommend no action in his case.’
19.127There was then an annotated comment from the lay screener, indicating her agreement with the observations of the caseworker. There was also a comment from a medical screener, Professor Thomas, who wrote:
 
‘I think it is very difficult for us to consider a case which has not been referred to us and although this turned out to be a brain tumour neither hearing has considered this a serious breach (withholding £500). I would value the view of a GP. These events were three years ago - no history of either doctor? I am inclined to no action. In any case if we took one and not the other I think the Welsh Office (i.e. the Office of the SoS for Wales) would be rather surprised. Would Dr Steel kindly review. Many thanks.’
19.128I pause to note that the three years’ delay in Dr Rahman’s case was attributable almost entirely to the time taken (from August 1995 to June 1998) for the complaint to pass through the NHS complaints procedures. The remaining period of six months or so was attributable either to a delay on the part of the Welsh Office in referring Dr Rahman’s case to the GMC or to the time taken by the GMC in dealing with the complaint. I cannot see why the delay should have been relevant to the screening test. Nor do I understand why it would be difficult to consider either case on account of the way in which it had been referred. Nor is the reaction of the Welsh Office a relevant consideration. In short, the first medical screener did not appear to have in mind the relevant considerations.
19.129Dr Steel was the principal medical screener at the time and a GP. It was common for him to be consulted when another medical screener was uncertain how to proceed. He reviewed the case and commented:
 
‘This is a lengthy read. I agree no action, not SPM as Coloid (sic) cyst is a very difficult diagnosis and Dr Rahman was GP with MRCP (Membership of the Royal College of Physicians). I especially note the letter from hospital 2 weeks before the final consultation and I note original (?) case was no breach. Dr R & Dr S reprimand only. Happy to discuss.’
 Quite apart from the fact that Dr Steel appears to have reached a concluded view that Dr Rahman’s treatment did not in fact amount to SPM, rather than expressing a view as to whether or not it could do so, he appears to have made two other serious errors. First, it cannot be relevant that a doctor is or is not a Member of the Royal College of Physicians. Second, it cannot be relevant that a MSC had decided in Dr Rahman’s case that there was no breach. That decision had been shown to be wrong by the subsequent decision of the SoS for Wales. It appears that Dr Steel was still exercising a wide discretion when screening cases and did not have in mind the advice given in the 1997 Screeners’ Handbook.
19.130The decision was taken to close the case. A letter to the Welsh Office dated 8th March 1999 was drafted but, it seems, was never sent. This letter included the following passage:
‘The members (i.e. the screeners) have carefully reviewed the actions of both Dr Rahman and Dr Sengupta in this matter. The members accept that there were shortcomings in the care that Mr Dean received from both doctors. However, they are satisfied that they are not of the gravity of serious professional misconduct and could not, therefore, justify the restriction or removal of their right to practice (sic) medicine.

The members have asked me to explain that a single error in the treatment or management of a patient’s condition does not usually constitute serious professional misconduct. Only in cases where it can be shown that the doctor has seriously neglected or disregarded his or her professional responsibilities to a patient could issues of serious professional misconduct or seriously deficient performance arise.’
19.131The decision not to proceed with the case against Dr Rahman was communicated to the claimants by a letter dated 22nd October 1999. They had been informed about the decision of the PPC in relation to Dr Sengupta three weeks earlier. The claimants, through their solicitors, then attempted to obtain the documents relating to the taking of the decisions. Those attempts continued until the end of July 2000 when, ‘with profuse apologies’, the GMC wrote saying that the minutes of the PPC were not discloseable. It is not clear whether the documents to which I have referred above were disclosed at that stage or later. The GMC’s decision was not communicated to Dr Rahman himself until 29th December 1999. It is not known when the Welsh Office was notified, but it seems that, at some time, the SoS for Wales became aware of the decision.
19.132The letter from the GMC to the claimants said:
‘The members have considered the case against Dr Rahman very carefully and understand that Mr Dean had seen him a number of times regarding his headaches. The members were satisfied that Dr Rahman’s actions were reasonable in the circumstances prior to July 1995.

The members accept the findings of the Welsh Office in respect of Dr Rahman’s consultation on 24 July 1995. However, the members did not feel that the errors made on this occasion constituted serious professional misconduct.

They have asked me to explain that an issue of serious professional misconduct can arise where there is evidence that a doctor has seriously neglected or disregarded his or her professional responsibilities towards a patient. However, a complaint about an alleged error by a doctor while treating a patient - even where the alleged error has had tragic consequences - does not in itself raise an issue of serious professional misconduct.’

The Judicial Review

19.133On 26th October 2000, the claimants issued judicial review proceedings, challenging the GMC’s decisions in relation to both doctors. The doctors were joined in the proceedings as interested parties. Grounds of opposition were filed by the GMC and the doctors. In December 2000, the claimants were granted permission to apply to the Court for judicial review. That was about six months after the decision in the case of Toth. Very shortly after, the GMC informed the doctors’ solicitors that it was minded to concede the claim because of doubts as to the lawfulness of the decisions of the screeners (in Dr Rahman’s case) and of the PPC (in that of Dr Sengupta). Subsequently, the GMC decided to consent to the quashing of the two decisions on the grounds that, in reaching those decisions, the wrong legal tests had been applied. A consent order was agreed between the GMC and the claimants. The doctors opposed the application. The hearing therefore took an unusual form, with the GMC and the claimants arguing that the decisions of the GMC were wrong and should be quashed and the doctors contending that the correct legal tests had been applied by the screeners and the PPC.
19.134In his judgement, Ouseley J adopted the analysis of the legislative framework contained in the judgement of Lightman J in the case of Toth. Counsel for the GMC argued that the decisions of the screeners had not been compliant with the language of the 1988 Professional Conduct Rules. He submitted that the documents from which I have quoted, in particular the draft letter to the Welsh Office, were not couched in ‘the language of preliminary consideration’, but contained expressions of judgement. Thus, in the letter to the claimants, it had been indicated that the screeners accepted the findings of the Welsh Office in respect of Dr Rahman’s consultation on 24th July 1995 but ‘did not feel that the errors made on this occasion constituted serious professional misconduct’. In the draft letter to the Welsh Office, the screeners were said to ‘accept that there were shortcomings in the care that Mr Dean received from both doctors’, but to be ‘satisfied’ that these shortcomings were ‘not of the gravity of serious professional misconduct and could not, therefore, justify the restriction or removal of their (i.e. Dr Rahman’s) right to practice (sic) medicine’.
19.135Ouseley J inferred that the caseworker who wrote the letters would have been informed of the basis of the decision by the screeners and would have reflected it faithfully in her letters. He noted that the GMC had produced no evidence that the correct test had been applied, observing that ‘if there had been clear evidence of the test being consistently applied ... I would have had it, even if the individual case itself could not be remembered’. He concluded that the decision in Dr Rahman’s case was probably arrived at by applying the wrong test. It was probable, he said, that the medical screeners reached the conclusion that Dr Rahman’s actions did not constitute SPM, rather than the conclusion that the actions of Dr Rahman were incapable of constituting SPM. In the Judge’s view, the terms of the letters sent by the GMC contained explicit judgements as to the quality of the acts as not constituting SPM, rather than judgements as to whether they were capable of doing so. Ouseley J went on to deal with the documents disclosed by the GMC:
 
‘The caseworker’s reference and the annotations by Professor Thomas and Dr Steel cannot be dismissed as simple annotations when one is trying to reach a conclusion as a matter of fact as to the basis upon which the decision making body reached its decision. Not merely do they not contradict the approach which is clear from the letter of 22nd October 1999, they support the inference which I have drawn. None of the material brings in the true test.’
 It is most discouraging to realise that, as recently as 1999, errors as fundamental as this were being made by the GMC. Not only had the screeners applied the wrong test, but the administrative staff had apparently not noticed the errors and had not queried the reasons when drafting the letters.
19.136It appears to me that these errors were not isolated failings in the application of the Rules to given situations but were indicative of a fundamental misunderstanding of the Rules and of the functions of a screener on the part of the medical screeners. I am driven to the conclusion that, in screening cases before 1999, the screeners habitually applied the wrong test. It also appears to me to be likely that screeners often took into account completely irrelevant factors. These endemic failings underline the need not only for the training of screeners, which was recognised by Mr Roger Henderson QC for the GMC at the Inquiry, but also for clear and agreed standards, criteria and thresholds to be promulgated. I recognise that it is not easy to ensure consistency of approach by different people undertaking a task such as screening. However, in the interests of fairness and consistency, it is obvious that preliminary decisions should be made in a structured way and reasons given so that they can be audited and analysed. The case of Holmes shows that, as recently as 1999, the GMC’s screening work was seriously flawed.

The Case of Woods

The Complaint

19.137The case of Woods v General Medical Council7 came before the High Court in June 2002, although the material events took place in 2001. The claimant was the mother of a baby boy who had died and whose body had been sent for post-mortem examination to the Alder Hey Children’s Hospital. Some of his organs had been retained without the claimant’s consent. Following the publication, on 30th January 2001, of the Report of the Royal Liverpool Children’s Hospital Inquiry (the Alder Hey Inquiry Report), the names of certain doctors who had been criticised in that Report were reported to the GMC. The medical and lay screeners decided not to refer the cases of two of the doctors to the PPC. The reason given by the GMC for these decisions was that the Alder Hey Inquiry Report did not raise issues of SPM relating to the two doctors. The claimant brought proceedings by way of judicial review, challenging the decision of the screeners. She also challenged the decisions of the PPC in respect of nine other doctors who had been referred by the screeners to the PPC but had not been referred on by the PPC to the PCC.
19.138It is not clear when the relevant screening decisions were taken. However, solicitors for the claimant sought an explanation of them and the GMC’s letter of explanation (which was undated) arrived on or about 16th August 2001. That was more than a year after rule 6(3) of the 1988 Professional Conduct Rules had been amended to change the screening test.

The Judicial Review

19.139Leave to apply for judicial review was granted and the case proceeded to a hearing before Mr Justice Burton. The medical screener had provided a witness statement describing the process and reasoning by which he had reached his decision. That witness statement had been approved by the lay screener. The witness statement made clear that there had initially been disagreement between the screeners. The medical screener had been confident that the case did not raise an issue of SPM or SDP. The lay screener had disagreed with that view. After lengthy discussions, they had agreed that the case should not go to the PPC. The Judge observed that there was nothing wrong or unusual about the fact that there had been disagreement between two independent-minded screeners. He noted, however, that the eventual agreement was said to have been reached by the lay screener ‘on balance’ although it was also said that both screeners had, in the end, been ‘convinced’ of its correctness.
19.140From the medical screener’s witness statement, it was clear that he had applied the screening test that had been in force before August 2000. He described the medical screener’s role as being to decide whether a complaint ‘need not proceed further’. The lay screener appears to have accepted that that was the test that he had also applied. Burton J drew attention to the fact that the change to rule 6(3) since the case of Toth had removed the reference to the word ‘need’ in the screening test and that the question of whether it appeared to the screener that the matter ‘need not proceed further’ had gone. That had been the old rule. As to the test that should be applied, the Judge observed that it appeared to him significant that, in practice, the screening process led to the formulation (by the medical screener, or by the staff, on the instructions of the medical screener) of a charge or allegation. The charge or allegation was then sent to the PPC for consideration. The medical screener had, therefore, to be satisfied that a charge could be laid. It appeared to Burton J that the decision to be made by the medical screener at that stage might simply be ‘whether there is no arguable case’. Burton J also observed that, although the ‘old’ test had been a narrow one, it might have been said to ‘allow for an element of subjectivity or proportionality’. By contrast, the ‘new’ test was ‘effectively, no arguable case’. It was clear that the wrong test had been applied. Burton J was not satisfied that, had the correct test been applied, the screeners would necessarily have reached the same decision. He therefore directed that the case should be reconsidered by the screeners, applying the correct test.
19.141It is obviously a matter of concern that it was possible for two screeners, in the middle of 2001, to apply the old screening test so many months after it had been replaced. This was despite the regular screeners’ meetings and training sessions which the Inquiry was told had been taking place since 1997. The hearing in this case took place in June 2002. The date of the medical screener’s witness statement does not appear in the judgement. It may be that it was prepared some time before the hearing took place. However, it seems clear that it cannot have occurred to either the medical or the lay screener at any stage up to the time of the hearing in June 2002 that the statement was based on a fundamental error as to the screening test to be applied. The medical screener in question had been appointed a medical screener in July 2000, the month before the new screening test came into effect. He was said by the Judge to have screened over 400 cases by June 2002. Presumably, he had applied the wrong test in all those 400 cases. In many cases, it may be that the error would have had no effect on the outcome. However, it seems likely that there would have been many cases where the error might have made the difference between a complaint being referred to the PPC and being closed at the screening stage.
19.142It seems to me that, if these two screeners were both under a misapprehension as to the correct test to apply, it is unlikely that they were the only two in that position. It is also likely that others within the GMC would have read the medical screener’s witness statement; yet it appears that no one noticed the error. There was not, of course, an up-to-date Screeners’ Handbook at the time. I have not been shown any guidance for screeners which was available at this time. One might have expected that having had to concede the errors made in Toth and Holmes would have been a chastening experience for the GMC. One might have thought that, having sought and obtained an amendment of the Rules to effect a change in the test to be applied by screeners, the GMC would have given a high priority to the education and training of screeners so as to enable them to apply the test correctly and consistently. Yet it appears that this was not done.

Further Work by the Policy Studies Institute

19.143In further work undertaken during 2002, Professor Allen and her colleagues analysed the outcomes of screening decisions made during the period from 1999 to 2001. The results appeared in their 2003 Paper. They compared the outcomes for individual screeners. This exercise showed variations in outcome as between medical screeners, with two ‘hawks’ sending an average of 30% of cases screened over the three years to the PPC and two ‘doves’sending an average of less than 20%. Professor Allen and her colleagues had previously recommended that a system of random distribution of cases to screeners should be put in place. They were told that, as a result of that recommendation, a ‘cab rank’ system of distribution of cases to the screeners had been in operation from the beginning of 2000. From that time, there should not have been any difference in the types or seriousness of cases handled by each individual medical screener. The PSI team suggested that, if it was indeed the fact that the distribution of cases was entirely random, the variations in outcome amounted to evidence that the medical screeners were not all applying the same standards and criteria to their decision-making.
19.144The PSI research was directed primarily at identifying any differences between the treatment by the GMC of doctors who had qualified in the UK and the treatment of those who had qualified overseas and, if any such differences were apparent, at analysing the possible reasons for those differences. Professor Allen and her colleagues identified differences in the treatment of the two groups but had difficulty in analysing the reasons for those differences because there was‘no discernible common agreement on the criteria and threshold to be applied in reaching a judgment on the seriousness or gravity of cases’. They pointed out that this lack of a common agreement had led to problems in ensuring consistency. These problems extended both to the treatment of different cases within the same stage (e.g. screening) of the conduct procedures and to the treatment of cases at different stages of the procedures (e.g. as between the screening and PPC stages). The PSI team referred back to the recommendations contained in its 2000 Report and observed that the continuing differences between the outcomes of FTP cases involving doctors who had qualified in the UK and those who had qualified overseas suggested that the development of guidelines to be used in the decision-making process was ‘a matter of priority’.
19.145As I have said, during their research, Professor Allen and her colleagues had primarily been concerned to discover whether there was any racial bias in the GMC’s FTP procedures. Plainly, if there was inconsistency in decision-making, it would be impossible for them to reach any reliable conclusions on that issue. However, consistency in decision-making is also important more generally in the interests of fairness to every doctor who is the subject of complaint. Professor Allen told the Inquiry that, on the available evidence, it could not be asserted that every doctor was treated by the GMC in the same way by reference to the same criteria and the same standards. This was because there were no generally agreed or applied criteria or standards. I would add that consistency is also important from the point of view of patient protection. If there is a ‘right’ threshold at which action should be taken, the public may be exposed to risk if action is not taken at that threshold in some cases. Also, unless the threshold is clearly stated, the public will feel aggrieved when the lack of clarity leads to inconsistency in decision-making.

Another Change in the Screening Test

19.146On 1st November 2002, following the decision in Woods, the screening test was changed again. Rule 6(3) of the 1988 Professional Conduct Rules was amended to read:
 
‘The medical screener shall refer to the Preliminary Proceedings Committee a case submitted to him ... if he is satisfied from the material available in relation to the case that it is properly arguable that the practitioner’s conduct constitutes serious professional misconduct.’
 Dr Midha told the Inquiry that this test altered the ‘presumption’ upon which screening decisions would be made. I think that he meant that whereas, before November 2002, a case had to be referred to the PPC unless the screeners agreed that no question of SPM arose (a negative test), under the new rule, the screener had to be positively satisfied that it was arguable that the doctor’s conduct constituted SPM. In fact, the change was very slight. The language had changed but the threshold to be crossed before the case was referred to the PPC remained very low. Put another way, if carried out in accordance with the Rules, screening remained, as had always been the intention, a very coarse filter.
19.147Also on 1st November 2002, the 1988 Professional Conduct Rules were amended to remove the requirement for a complainant to provide a statutory declaration in support of his/her complaint.

The November 2002 Screeners’ Handbook

19.148On this occasion, a new Screeners’ Handbook (the November 2002 Screeners’ Handbook) was issued at the same time as the change in the screening test. This was the Handbook that was in use at the time of the Inquiry hearings in December 2003. It incorporated an aide memoire on the interpretation of the new screening test. Screeners were advised that they should first ask whether it was properly arguable that the alleged misconduct was capable of constituting SPM. In answering the first question, screeners were advised that:
‘i It should be assumed the allegation is true;

ii An assessment should be made of the allegation’s seriousness not credibility;

iii The argument does not need to be likely to prevail before the PCC;

iv The issue is properly arguable if a claim can reasonably be made that the practitioner’s behaviour fell seriously short of the standards of conduct expected among doctors.’
19.149Screeners were told that, if they were of the view that it was properly arguable that the alleged misconduct was capable of constituting SPM, they should then consider whether it was properly arguable from the material available in relation to the case that the practitioner had committed SPM. In considering this question, screeners were urged to remember that:
‘(i) This question addresses the factual allegations;

(ii) It identifies possibilities not probabilities;

(iii) It is based on the identification of a possibility less than any real or realistic prospect of the allegation being sustained;

(iv) Properly arguable means reasonably arguable. An allegation is not properly arguable if it is absurd, frivolous, vexatious or repeats an earlier allegation (whether made by the same or different complainants);

(v) Conflicts of evidence should not normally be resolved;

(vi) Implausible accounts unsupported by other evidence can legitimately be rejected.’
19.150Screeners were cautioned that the evidential element of the test did not establish a ‘high hurdle against the progress of a case’. They were told that they must not make any attempt to resolve conflicts of evidence. The November 2002 Screeners’ Handbook stated:
 
‘There will be very few cases where the allegation(s) against the doctor are either fanciful, incredible or incapable of being supported by the evidence.’
19.151I have already mentioned in Chapter 18 that the November 2002 and April 2003 versions of the FTP Casework Manual and the May 2004 FTP Investigation Manual advised that the amount of evidence required by the screeners was ‘minimal’.
19.152In deciding whether conduct was or was not capable of amounting to SPM, screeners were told that they should bear in mind the relevant GMC guidance when exercising their discretion whether to close a case or to refer it to the PPC. The November 2002 Screeners’ Handbook stated that staff would ensure that the screeners’ attention was drawn to the appropriate guidance. In many cases, the ‘guidance’ would be the relevant passage from ‘Good Medical Practice’. The November 2002 Screeners’ Handbook made it clear that deviation from the published guidance would not necessarily give rise to issues of SPM. It stated:
 
‘The key will be the degree and/or nature of deviation from that guidance.’
 The Handbook further advised (in language that came perilously close to encouraging the screener to make a ‘judgement’ on the evidence) that:
 
‘Screeners should bear in mind that if they determine that a doctor deviated from best practice, as set out in our guidance, but not by so much as to call his or her registration into question, a closing letter containing advice to the doctor may be the logical outcome.’
19.153The Handbook contained no criteria by which screeners were to assess the ‘degree’or the ‘nature’ of the deviation from the relevant guidance that would be sufficient to call a doctor’s registration into question. In my view, the use of the expression ‘to call the doctor’s registration into question’ may have caused some confusion, in that it might have suggested to some screeners that the conduct had to be so serious as to give rise to the possibility of erasure from the register. In fact, if SPM were proved, the PCC could impose lesser forms of sanction than erasure, including the imposition of conditions. In the recent past, it became increasingly common for the GMC to use the concept of conduct which was ‘serious enough to call registration into question’ as an equivalent of SPM. In my view, the use of this expression did not help screeners to decide whether the conduct amounted to SPM.
19.154In making a decision on a case, the November 2002 Screeners’ Handbook advised that a medical screener had a number of options. First, s/he could (with the agreement of a lay screener) close the case. If s/he decided that that course was appropriate, s/he could elect to send a letter to the doctor, giving advice as to his/her future conduct. Second, the medical screener could refer the case to the PPC. Third, if the medical screener believed that there were grounds to suggest that the standard of the doctor’s professional performance might have been seriously deficient, s/he could refer the case for a performance assessment. I shall discuss that option further in Chapter 24. Fourth, the medical screener could refer the case to the health procedures.
19.155A fifth option for the medical screener was to request further information. However, screeners were advised that they should do this only in circumstances when further information was necessary in order to clarify what the allegation was. Screeners were warned not to request further evidence that was not necessary for this purpose. The November 2002 Screeners’ Handbook stated that, if they did, and evidence was obtained in response to their request:
 
‘... we (i.e. the GMC) leave ourselves open to the charge that the screeners, in seeking evidence, must have intended to take that evidence into account in making their decision and that in doing so they went beyond their legal powers and applied the wrong test (by weighing the evidence)’.
19.156I understand entirely why the GMC wished to discourage requests for further evidence about an allegation. However, it would have been unfortunate if screeners had been discouraged from asking that staff should find out, for example, whether other complaints of a similar nature had come to the attention of the doctor’s employer or the primary care organisation on whose list s/he was included. Complaints should not be considered in isolation; additional information might well show that an apparently isolated complaint of poor clinical practice was in fact a sign of SDP. However, it may be that, in the future, the GMC will obtain such information as a matter of routine, at least in certain cases. I shall return to this issue later.
19.157The November 2002 Screeners’ Handbook advised that, once a decision had been made to refer a case to the PPC, the medical screener should not request that further information be obtained before the case proceeded. By making the decision, the medical screener had fulfilled his/her role and had no further part in directing the case. It was open to the medical screener, in exceptional cases, to request a second opinion from another medical screener or to call for a case conference of several screeners. However, screeners were enjoined to exercise these options only when ‘absolutely necessary’, since they would have the effect of prolonging the screening process. Under the GMC’s service standards, screeners had two weeks to consider each file and come to a decision. In exceptional cases (i.e. those which were highly complex or which contained large amounts of information or documentation), screeners could agree with GMC staff a longer timescale for an individual decision. Medical screeners were also advised that they should consider whether it was necessary to take steps to protect the public interest by suspending or imposing conditions on a doctor’s registration, pending the final determination of his/her case. If they believed that it was necessary to take such steps, they were required to refer the case to the Interim Orders Committee.
19.158The November 2002 Screeners’ Handbook advised that a SDF should be completed and the screener should give clear reasons for his/her decision. Those reasons should relate solely to the test which screeners were required to apply. If a case was to be closed, the medical screener should approve the letters to be sent to the complainant and the doctor. The November 2002 Screeners’ Handbook reminded medical screeners that the explanations to the various parties should be identically worded, except where technical terms might need to be explained to a complainant.
19.159The November 2002 Screeners’ Handbook made clear that one of the functions of caseworkers and case managers in the Screening Section was to ensure that screeners’ decisions were made in accordance with the law and with the statutory process. An agreed protocol was attached to the Handbook, setting out the circumstances in which it would be appropriate for a member of staff to ask a screener to reconsider a decision which might have been made for reasons which were not legally defensible. This might arise if the medical screener requested that staff should obtain information that was not necessary for the purpose of the screening decision. More frequently, it would arise if the reasons for the decision given by the medical screener demonstrated that s/he had taken into account matters which should not have formed part of the decision-making process. An example would be if it was clear that the screener had ‘weighed up’ the evidence or had speculated about how the PPC or PCC might dispose of the case. The protocol pointed out that a decision taken in these circumstances might be vulnerable to challenge by judicial review. In a case where there was real concern about the potential for judicial review, the protocol suggested that the advice of the GMC’s solicitors might have to be sought before a final decision was taken on the case. This was, no doubt, intended to avoid a repetition of the situation in Toth and in Holmes, where it was immediately evident to the GMC’s advisers that the decisions of the screeners were unsustainable.

The Treatment of Convictions

19.160On 1st November 2002, rule 5(1) of the 1988 Professional Conduct Rules was amended to read:
‘Where information in writing is received by the Registrar from which it appears to him that a practitioner has been convicted of a criminal offence in the British Islands or has been convicted of an offence elsewhere which, if committed in England or Wales, would constitute an offence

(a) in a case of conviction for an offence which the Registrar considers to be a minor motoring offence the case shall not proceed further;

(b) in a case of conviction where a custodial sentence has been imposed (but excepting any case where the sentence was suspended), the Registrar may refer the case direct to the Professional Conduct Committee for inquiry unless it is his opinion that such direct referral would not be in the public interest;

(c) in any other case of conviction including any case which the Registrar has determined not to refer direct to the Professional Conduct Committee under rule 5(1)(b), the Registrar shall refer the case to the medical screener.’
 This change gave explicit legislative authority to the longstanding direction by the PPC that convictions for minor motoring offences need not be referred to the PPC or, indeed, to a medical screener. The amended rule appears to have created an expectation that convictions leading to an immediate custodial sentence would usually be referred directly to the PCC and that all others, save those for minor motoring offences, would be referred to a medical screener.
19.161The November 2002 Screeners’ Handbook dealt with the screening of convictions. It stated:
‘A subset of conduct cases relate to doctors convicted of a criminal offence ... When we receive notification of a conviction, staff will refer the case to a screener (unless the doctor in question was imprisoned, in which case the matter will be referred direct to the PCC), who must in turn refer it to the PPC unless:

a. it appears to the screener that the doctor’s fitness to practise may be seriously impaired by a physical or mental condition and that action under the health procedures should be taken in preference to action under the conduct procedures; or

b. the conviction is for a minor motoring offence (not involving the use of alcohol or other drugs), or a conviction for a minor offence not involving dishonesty.’

The Problem of Finding Out How Conviction Cases Were Dealt With

19.162There is a real problem in discovering the number and nature of convictions reported to the GMC and in tracing how those convictions have been dealt with. In the GMC’s annual FTP statistics, cases dealt with by medical screeners are divided into broad categories. There is no separate ‘conviction’ category. Some of the categories (e.g. dishonesty, sexual assault/indecency and violence) will presumably include both conviction cases and conduct cases. It is not possible, on reading the statistics, to distinguish between the two. In 2003, 28 cases involving allegations of dishonesty against doctors were closed by screeners, out of 125 such cases considered. It may be that in none of the 28 cases had the doctor been convicted of a criminal offence. It may be that a sizeable proportion had been convicted. It is impossible to tell from the annual FTP statistics. It was only when cases were referred to the PPC that the GMC statistics identified the number of conviction cases dealt with and their outcome. In my view, this is unsatisfactory. It is important for members of the GMC and the wider public to know exactly how the GMC deals with doctors convicted of criminal offences. Transparency is particularly important where concerns exist, as they do, about the disparity of treatment between different groups of doctors.

Remission of Cases to the Health Screener

19.163Since the introduction of the health procedures in 1980, the Professional Conduct Rules have permitted medical screeners, in both conviction and conduct cases, to remit an appropriate case to a health screener to be dealt with under the voluntary health procedures, as an alternative to referring the case to the PPC. A large proportion of the cases where this course of action is considered involve abuse by a doctor of alcohol or controlled drugs.
19.164According to the GMC annual FTP statistics, in 2001, the medical screeners remitted 31 cases (out of 2235 cases screened) to the health screener. In 2002, 13 out of 2239 cases were so remitted. In 2002, 13 out of 1884 doctors whose cases were dealt with by the medical screeners were referred into the health procedures. In 2003, the figure was seven out of 1304 doctors. It is not possible to say how many of these cases (if any) involved convictions. In any event, it is clear that in the recent past, the medical screeners have referred only a small proportion of cases into the health procedures.

Audit of Screening Decisions

19.165While carrying out the work preparatory to their 1996 Report, Professor Allen and her colleagues had advised that screeners should receive training and should be provided with information about the results of cases they had screened. This had not happened up to that time. In response to that recommendation, regular meetings of screeners and screening casework managers were instituted. These were used to discuss issues of common interest arising from the screening process, as well as specific screening cases, suitably anonymised. In addition, training sessions and workshops for screeners and screening caseworkers were introduced.
19.166From about the end of 2002 or the beginning of 2003, screeners began to receive statistics about their own screening outcomes. The statistics showed how many cases the screener had closed and how many s/he had referred to the PPC. Screeners were able to compare this information with anonymised information about the screening outcomes of colleagues. The object of this was to inform individual screeners and also to enable the GMC staff to identify screeners who appeared to be outliers in some way. When the new system was introduced, it was intended that, if an outlier was identified, an explanation would be sought and any necessary remedial action taken. The Inquiry has no information about whether such action has been taken in respect of any screener. Screeners were also informed of the outcomes of the PPC’s consideration of cases they had referred there.
19.167In September 2002, Mr Blake Dobson joined the GMC. He was given responsibility for developing a programme for auditing GMC casework which could be applied to both the existing and the new FTP procedures. In January 2003, Mr Dobson became Head of the FPD Audit Team. The Team consists of three caseworkers and an administrative assistant, as well as Mr Dobson.
19.168In August 2003, the audit of screening decision-making began. A random sample of two cases per medical screener was audited each month. The audit involved examination of the caseworker’s memorandum to the screener and of the screening memorandum setting out the screener’s decision and any other comments made by the screener on the file. The auditors also checked that the relevant part of the SDF had been correctly completed and was consistent with the screening decision.
19.169A check was made to ensure that the reasons for the decision accorded with the screening test to be applied. If there was evidence which suggested that the basis of the decision was questionable - because the screener appeared to have applied the wrong test, for example, or because s/he had taken into account matters which should not have formed part of the decision - the file was referred to Mr Dobson and, if he had concerns, it was passed to the Director of the FPD.
19.170This procedure was a most welcome development. Until its introduction, scrutiny of a screener’s decision would occur only if proceedings for judicial review were taken. However, the scrutiny was still not complete. It checked that the reasons given complied with the legal test (which was plainly important) but it did not involve any evaluation of whether the decision itself was correct in all the circumstances of the case.
19.171More recently, in May 2004, the Fitness to Practise Committee set up an Investigation Audit Sub-Group, with a view to establishing and developing a programme of audit for the investigation stage of the new FTP procedures.
19.172There was, in the past, discussion about the appraisal of screeners. These discussions were not taken forward, largely because of the imminent changes in the arrangements for screening.
6 [2001] EWHC 321 (Admin).
7 [2002] EWHC 1484 (Admin).
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Published by The Shipman Inquiry
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