In December 2017 the GOC launched a consultation on the proposed introduction of acceptance criteria. The GOC plans to use these criteria as a case management tool to decide whether to accept a complaint about an individual registrant as an allegation of impaired fitness to practise. The consultation paper included draft guidance for GOC staff and the public on the use of the criteria.
THE AOP'S RESPONSE
Our responses to the consultation questions are set out below. In summary, we think new acceptance criteria for fitness to practise (FTP) cases could bring benefits for registrants, the public and the GOC itself. However, these benefits will only be delivered if:
- The GOC’s guidance for its own staff and the public is revised and made clearer, and
- The GOC staff responsible for applying the criteria are able to apply them confidently.
Question 1 Do the Acceptance Criteria documents properly reflect the overarching objective of the GOC?
Yes/No/Unsure? – Unsure.
The consultation paper and the draft staff and public guidance on the use of fitness to practise (FTP) acceptance criteria all state that the GOC’s overarching objective is the protection of the public. We think new acceptance criteria for FTP cases could enable the GOC to close cases that don’t raise FTP concerns more quickly than at present, with potentially significant benefits for registrants, the public and the GOC itself, and without posing any material new risk to public protection.
However, we have concerns about some important aspects of the consultation paper and the draft staff and public guidance, including:
- The consultation paper does not explain which GOC staff will take decisions using the criteria, or what right of appeal registrants or the public have against those decisions
- The process for applying the criteria is also unclear – in particular, the consultation paper does not explain how the criteria will be applied if it is not clear at the outset whether a complaint amounts to an FTP allegation, and so some investigation is needed
- There are potentially confusing inconsistencies between the staff and public guidance – for instance, the public guidance doesn’t mention some categories of complaint that could amount to FTP allegations, such as complaints about personal conduct, while the staff guidance does
- The staff guidance contains detailed information about categories of conviction and caution that the GOC is unlikely to regard as an FTP issue, but some of the categories listed are unlikely to be disclosable in any event
- Conversely, the staff guidance gives no detail about the type of health problems that the GOC is unlikely to regard as an FTP issue, which would be helpful information for registrants and the public, as well as for the GOC staff applying the criteria.
These issues could potentially lead to complaints that raise FTP issues being filtered out before the investigation stage, which would pose a risk to public protection.
We discussed these concerns with GOC staff during the consultation process, and are grateful for the additional information they provided in response. We now understand the GOC intends that:
- Decisions under the criteria will be taken by a ‘triage team’ of GOC staff, and will be registrar’s decisions under GOC’s FTP rule 4
- Registrants and complainants will have a right of appeal against these decisions to the GOC’s director of casework, and ultimately Judicial Review will be available
- Where a complaint needs some investigation before the criteria can be applied, this could in principle be done by the triage team – so such complaints will not necessarily be passed straight to case examiners
- If the GOC decides not to accept a complaint under the criteria, the details of the complaint may still be kept on file to inform future decisions – for instance, if the complaint is about poor record-keeping but appears to be a one-off event rather than a persistent failing
- The GOC intends to revise the draft staff and public guidance to ensure that they are clear and consistent, both with each other and with current GOC guidance on FTP issues.
In the light of this we think that as long as the draft guidance is revised and clarified, it should help to:
- Protect the public by ensuring that complaints which raise FTP concerns are properly investigated, and
- Enable the GOC to close cases which do not raise FTP issues at an earlier stage, saving time and costs for all involved.
We note that the potential benefits of introducing acceptance criteria will only be delivered if the GOC staff responsible for applying the criteria are able to apply them confidently, and we discuss this in our response to question 2.
Question 2 Will the Acceptance Criteria help to achieve consistency in the GOC’s decision making?
Yes/No/Unsure? – Unsure.
The acceptance criteria have the potential to support more consistent decision-making, but this will depend on:
- Whether the GOC’s guidance on the criteria is made clear and consistent, as discussed in our response to consultation question 1; and
- Whether the GOC staff who apply the criteria at the ‘triage’ stage have the skills, experience and confidence to make accurate and consistent decisions.
We have suggested to the GOC that it gives the decision-making function to staff who already have experience of the GOC’s case examiner function. That should help to ensure that decisions on the use of the criteria are consistent with the GOC’s decisions at the case examiner stage.
It should also maximise the potential benefit of introducing acceptance criteria, because experienced staff are more likely to be confident in applying the criteria to reject complaints before they reach the case examiner stage.
If the staff applying the criteria do not have that confidence, they are likely to refer more cases to the case examiner stage out of caution – which would undermine the value of introducing the criteria.
Question 3 Do the Acceptance Criteria ensure that FTP allegations will be accepted? How could this aspect be improved?
Yes/No/Unsure? – Unsure.
As discussed in our responses to questions 1 and 2, the effectiveness of the acceptance criteria will depend on the clarity of the GOC’s guidance and the experience of the staff applying the criteria.
Question 4 What impacts (positive and negative) could the criteria have for (A) Registrants? (B) The public?
In our view the impact of the acceptance criteria will depend on whether the GOC clarifies its guidance and uses appropriately experienced staff to apply the criteria, as discussed in our responses to questions 1 and 2.
If the GOC addresses the points we have raised, then we think the key impacts will be:
- Cases which clearly do not raise FTP concerns will be closed by the GOC more quickly than at present, reducing stress and costs for registrants.
- Everyone involved in the FTP process, including the GOC itself and representative bodies such as the AOP, will be able to focus their resources on those cases which do potentially raise FTP concerns, and this has the potential to lead to quicker and more consistent resolution of these cases. This is a potentially significant benefit for registrants, since the GOC’s current FTP process often takes far too long from start to finish
For the public
- If the GOC’s guidance on its acceptance criteria helps the public to understand the sort of cases which do and do not give rise to FTP concerns, that should improve public understanding of the GOC’s role.
- Complainants whose cases do not raise FTP concerns will be less likely to spend time on the potentially stressful experience of bringing a complaint to the GOC, only to find it rejected after investigation.
- Complainants whose cases do potentially raise FTP concerns should benefit from quicker and more consistent case management if the GOC and representative bodies can focus more resources on such cases.
- There is a potential negative impact if the criteria lead to complaints being rejected before investigation, in cases where further investigation could have identified an FTP concern which was not apparent at the outset. However, we think this risk will be low if the GOC clarifies its guidance on the criteria and uses suitably experienced staff to apply the criteria.
If the GOC does not address the points we have raised then the potential benefits we have identified above will not be realised. In addition, we think the introduction of criteria without clear guidance and/or suitably experienced decision-making staff could have the following impacts:
- Additional stress, costs and delays in resolving complaints if unclear guidance and/or staff inexperience lead to decisions about the use of the criteria being overturned on appeal
For the public
- Additional stress, costs and delays for complainants if decisions are overturned on appeal
- A greater risk that the criteria lead to complaints being rejected before investigation, in cases where investigation could have identified an FTP concern which was not apparent at the outset.
Question 5 Do you have any further comments on our proposed acceptance criteria which are not captured in your responses to the questions above?
We recognise that developing clear and consistent guidance for GOC staff and the public on the use of acceptance criteria is not a simple task. Our role in representing our members in GOC FTP proceedings gives us a good insight into many of the issues involved, and we would be happy to contribute to the development of the final guidance if the GOC would find that helpful.