AB, petitioner: Who examines the examiners?

When complaints are made to the General Medical Council, case examiners will determine whether there is any real prospect of the complaint being established. If they conclude there is not, the complaint will be closed with no further action or a warning. In the recent case of AB, Petitioner [2021] CSOH 85, the court explored the role of the case examiners and the extent to which their decisions are open to challenge by disappointed patients.

Facts

The petitioner’s two year old daughter, called X throughout the judgment, was brought to hospital with symptoms which doctors suspected may have been induced deliberately. Her parents blamed the medication she had been prescribed. Unsupervised access from her mother was stopped. Her medications were also stopped. Happily, X recovered.  

Due to safeguarding concerns, Dr C produced a report which concluded that X's symptoms were consistent with “fabricated or induced illness”. The local authority initiated a child protection investigation, and X was taken into care. Her parents maintained her illness was a side effect of unnecessary medication and subsequent reports cast doubt on Dr C’s conclusions. The safeguarding proceedings were dropped.

The petitioner referred Dr C to the GMC. The GMC opened an investigation but decided to take no further action against Dr C. The petitioner sought judicial review of that decision.

The petitioner submitted that the case examiners had erred in failing to consider that Dr C had a conflict of interest in preparing the safeguarding report. The GMC argued that the test to be applied was “whether there is a realistic prospect of establishing that [the] doctor’s fitness to practise is currently impaired to a degree justifying action on her registration”.

The decision making progress

The petitioner alleged that the case examiners had erred in deciding that there was no realistic prospect of establishing that Dr C's fitness to practise was impaired. They had instructed an independent expert to consider Dr C's conduct. They made their decision based on that report, which concluded that there were no aspects of Dr C's care which “fell below, or seriously below” the standard of the reasonably competent consultant paediatrician.

The court held that the case examiners had a "limited, filtering, role", which was to examine whether the complaint has any real prospect of being established. They could refuse to refer the allegation on for a full hearing if satisfied that there was no real prospect. However, this should be done with the utmost caution, having regard to their limited role. A balance must be struck between the interests of the practitioner and the need for complaints to be fully and properly investigated.

Conflict of interest

The petitioner first argued that in producing the safeguarding report, Dr C had a conflict of interest. The outcome of the report could be that symptoms were caused by the actions of the parents, or by the medication given by Dr C's colleagues. However, the court accepted the argument of the GMC that Dr C was not acting as an expert but as a clinician; and that if she were conflicted then clinicians involved in the care of a child could never act upon safeguarding concerns by writing a report for child protection purposes. The case examiners had implicitly dealt with the question of conflict of interest by referring to the guidance which dealt with safeguarding procedures and provided that the treating medics, rather than a tertiary expert, should deal with safeguarding concerns in the first instance.

Conclusions

Although case examiners are limited to a filtering role, it is a vital step for both doctors and complainants. Case examiners are entitled to rely upon expert reports when these are instructed, and to refer to the guidance in place in concluding whether there is a reasonable prospect of the doctor's conduct falling below the standard expected. Here, their reliance on an independent expert was key to the conclusion that they were entitled to decline to refer the complaint to a full hearing.

Case examiner determinations rarely receive the same level of attention as full hearings before the MPTS. However, often the best outcome for a doctor will be a case examiner decision not to refer to a full hearing. The GMC's independent expert was supportive of Dr C, but even where a report is critical there is much that can be done to reassure case examiners that a full hearing is unnecessary. As this case shows, where that happens it will be difficult for the complainant to have that decision reversed.