The General Medical Council ("GMC"), the regulator of medical practitioners in the United Kingdom, recently published its report entitled 'Audit of the fairness of decisions in the General Medical Council's fitness to practise procedure In July 2021' (the "Report").

Audit

The Audit was commissioned to answer the question: "In relation to the evidence available to them at the point that decision was taken, are the decisions taken by GMC staff at key points in our fitness to practise procedures in line with the Guidance provided to them for those decisions?"

Fieldfisher were appointed to undertake this Audit and chose to work with lawyer and academic Annie Sorbie, lecturer in Medical Law and Ethics from the University of Edinburgh. Annie developed a robust sampling methodology which considered:

1. The category of case where key decisions were made (e.g. the types and sources of allegations); and

2. The characteristics of the medical practitioners about whom concerns were raised (e.g. ethnicity, the world region where the medical practitioner gained their primary medical qualification and their gender).

Fieldfisher specialists then reviewed the sample cases and audited the key decisions against GMC Guidance. The purpose of the Audit was to examine if each decision was within the bounds usually anticipated by the Guidance, or whether an appropriate rationale had been provided for departing from the Guidance

The following are some examples of GMC Guidance which were used to determine the fairness / consistency of decisions:

  • The application of the realistic prospect test (i.e. whether the allegations were serious enough to warrant action on the medical practitioner’s registration and whether the allegations were capable of proof to the required standard, namely that it is more likely than not that the alleged events occurred);
  • When and how to take a medical practitioner's fitness to practise history into account;
  • The circumstances in which undertakings might be offered;
  • Cases where warning or advice might be issued, etc.

GMC Decision Stages

The audit focused on the GMC's decisions at preliminary screening stage (i.e. Triage, Provisional Enquiry and Case Examiner), as opposed to decisions at the final Inquiry stage (which is undertaken by an independent Tribunal). The GMC preliminary screening process is slightly different to the process in Ireland and therefore merits some explanation:

  • The 'Triage' stage is where the GMC considers whether a complaint or enquiry raises a question about a medical practitioner's fitness to practise. Those complaints not relating to fitness to practise are closed immediately (e.g. cases about late appointments or disagreements about the content of medical reports). Some complaints that do not raise serious concerns would not require a full investigation unless they formed part of a pattern of similar concerns. The GMC often refers those complaints back to the medical practitioner's responsible officer (RO) or employer.
  • Since 2014, the GMC has carried out 'Provisional Enquiries' (PEs) at the triage stage in cases that meet certain criteria. These enquiries can be undertaken quickly and will assist the GMC to decide whether to close a complaint or open a full investigation. The GMC aims to complete provisional enquiries within 63 days, compared with six months for a full investigation. In 2019, around 70% of such cases were closed without a full investigation.
  • If following the Triage / Provisional Enquiry Stage, the case has been promoted for further investigation by a case examiner, the case examiner must carry out a preliminary investigation and decide whether there is a realistic prospect of establishing that a medical practitioner's fitness to practise is impaired to a degree justifying action on registration.

By way of summary, the key decisions which were audited from the sample cases were as follows:

Triage stage:

  • Decisions to close the case immediately;
  • Decisions to promote the case for investigation and a Case Examiner decision.

Provisional Enquiry Stage:

  • Decisions to close;
  • Decisions to close and notify the registered officer (RO)/Employer.
  • Decisions to promote the case for investigation and a Case Examiner decision.

Case Examiner stage:

  • Decisions as to whether there is a realistic prospect of establishing that a medical practitioner's fitness to practise is impaired to a degree justifying action on registration.

Findings

Following the detailed Audit, consisting of 119 cases, it was found that the decisions taken at key points between 01 November 2018 and 31 October 2019 were made in accordance with the GMC's Guidance. The 119 cases included 80 triage decisions, 15 provisional enquiry decisions and 24 case examiner decisions drawn from a sample frame of 14,936 decisions made by GMC decision makers.

The key findings from the Audit were as follows:

  • The auditors found no evidence of bias in the way the GMC's fitness to practise decision makers interpreted the guidance they use to make their decisions.
  • In all cases audited, the auditors concluded that the decisions taken were in line with the guidance provided to the decision makers.
  • With no departure from guidance identified, the auditors had no need to move the audit to a second stage, which would have analysed any departures from guidance.

Summary

This Audit is part of an ongoing programme of work to ensure that the GMC's fitness to practise procedures are fair, consistent and robust. The audit is very useful as it shows that decisions made by GMC's staff at key stages of their investigation process were consistent with the guidance provided to them to help them reach these decisions. The full text of the GMC's Report can be accessed here.

In our experience regulatory bodies can be greatly assisted by inviting external experts to undertake regulatory and compliance audits. Where these are done by lawyers they can have the benefit of being privileged, and they can be focussed to address any particular priorities the organisation has, although in this particular case the GMC always intended to publish the Audit report by way of providing reassurance that it had subjected itself to such scrutiny.