FAIRNESS AND
THE GENERAL MEDICAL COUNCIL
Striking the right balance
Richard Booth
1 Crown Office Row
The regulation of all professions, but in particular the
medical profession, has been a burning discussion topic in recent years. The
fundamental question is to what extent any profession should be permitted or
entitled to regulate itself. The consequences of Dame Janet Smith’s report
following her Inquiry into the Shipman case are likely to be substantial and
may well have the effect of removing the regulation of doctors from the GMC as
presently constituted, or at the very least requiring the GMC to alter
fundamentally both its rules and procedures.
The potential importance of collateral proceedings in the
GMC to any claimant or defendant in a clinical negligence case will be obvious.
This article looks at three recent cases in which the concept of fairness in
the GMC context was analysed by the Administrative Court.
Singapore Sling
It seems odd to think of a regulatory body in a distant land
seeking to challenge in a domestic court a decision of a domestic regulatory
body about a professional who no longer works or seeks to work in that distant
land. However, that is exactly what happened in R (on the application of Singapore Medical Council) v General Medical Council & Another [2006] EWHC 3277
(Admin).
The Singapore Medical Council (SMC) sought judicial review
of a decision of the GMC to cancel the referral of a charge against the
interested party (S) to its Fitness to Practice (FTP) Panel. S, a doctor
registered with the GMC, had led a medical research project in Singapore. The SMC had investigated complaints about the conduct of this project, had
brought charges against S and, in slightly unusual circumstances, had found
them proved. S was found guilty of professional misconduct and the SMC had
directed that his name be removed from the Register of Medical Practitioners in
Singapore. The GMC became aware of the Singapore proceedings and decided that
a charge against S should be referred to its own FTP Panel. However, after
taking Leading Counsel’s advice, the Chairman of the GMC’s Investigation
Committee later directed that the referral to the FTP Panel be cancelled.
The SMC submitted that it was a complainant within the
meaning of the GMC’s 1988 Procedure rules and that, as such, the GMC owed it a
duty of fairness. It argued, inter alia, that in omitting to give it the
opportunity of making representations about the decision to cancel the
referral, the GMC had breached that duty of fairness and that the discretion to
cancel the referral had thus not been exercised fairly. The SMC also argued
that the decision to cancel was flawed and unsustainable.
Davis J held that the SMC’s procedural and substantive
challenges both failed. He also expressed considerable unease as to whether the
SMC had sufficient standing to claim judicial review. The judge held that the
SMC was not a complainant within the GMC’s rules. Further, the functions of the
SMC related to the conduct of disciplinary proceedings against medical
practitioners registered in Singapore, and it was extremely difficult to view
its statutory functions as extending to inviting, initiating or making charges
against a doctor in a different jurisdiction.
The judge went on to hold that whilst in an appropriate case
a duty of fairness was capable of existing outside of, or collateral to, the
ambit of the express rules, the evidence did not support the existence of such
a duty in this case. Further, it was difficult to see how either the SMC itself
or the integrity of its earlier decision could be affected by the GMC’s
decision to cancel the referral. On the substantive challenge, the judge held
that the GMC had taken a rational and sustainable decision on the expert
evidence, legal advice and materials before it.
The
5 year rule
In R (on the application of Peacock) v General Medical
Council, Gibbs J (Admin), 22.02.07, a GP (P) sought judicial review of a
GMC decision to allow a complaint against him to be considered outside the
normal time limit of 5 years from the most recent events giving rise to the
allegation: r.4(5), GMC (Fitness to Practise) Rules Order of Council 2004. The
complainant had suffered cardiac arrest and consequent brain damage as a result
of taking drugs prescribed for her, and, three years later, brought a clinical
negligence claim against P, another GP and an NHS Trust. This claim was
compromised on the basis that the NHS Trust bore 50% of damages, with each GP
bearing 25%. Seven years after the injuries were sustained, a complaint was
made to the GMC.
P asserted that the claim should not be entertained by
reason of the 5 year rule. The GMC Registrar waived the time limit on the basis
of exceptional circumstances. The common issues in the case were, first,
whether P’s application to challenge the decision of the Registrar was
premature and, second, whether the decision itself was flawed in the sense of
being irrational or resulting from a misdirection of the Registrar in relation
to exceptional circumstances.
Gibbs J held that the claim for judicial review was not
premature and the court should entertain it. In particular, there would be no
later stage in the disciplinary process when the tribunal would consider the
existence of exceptional circumstances. Rule 4(5) provided a distinct and
free-standing safeguard that set a general proposition, absent exceptional
circumstances, against the presentation of long-delayed complaints. If a wrong
decision were made in relation to r.4(5) at this stage, allowing a complaint to
proceed, there would not be any satisfactory remedy later in the proceedings.
Accordingly, the claim was not premature and was in stark contrast to those
cases where proceedings were under way and judicial review would constitute an
untimely and expensive interruption: R (SS) v Knowsley PCT [2006] EWHC
26 (Admin) considered.
On the substantive challenge, the judge held that the
Registrar’s decision to waive the time limit was irrational given that there
was no proper reason for the delay in making the complaint and there were no
circumstances capable of constituting exceptional circumstances. Although
misconduct in itself could be so serious as to amount to exceptional
circumstances (cf. e.g. Shipman), P’s conduct did not fall within that
category, especially in the light of the fact that he had continued to practise
as a doctor without any other complaint or blemish on his record. At its
gravest, the allegation was one of serious negligence in relation to one
example of misprescription of drugs to one patient.
Doctor’s
incapacity through illness
In Mahmood v General Medical Council [2007] EWHC 474
(Admin), a doctor (M) appealed against a decision of the GMC’s FTP Panel to
proceed with a hearing in his absence. M suffered with heart problems and the
first scheduled hearing had had to be adjourned when he was admitted to
hospital with chest pain. The hearing was re-scheduled, M saying that he would
attend, but he again failed to do so. The complainant asserted that she had
seen M outside the GMC that morning and, with that knowledge, the Panel had to
decide whether to proceed with the hearing in M’s absence. In fact, M had been
admitted with chest pain to a hospital across the road from the GMC premises.
Counsel for the GMC telephoned the hospital for further
information and was informed by the ward sister that M did not wish to say
anything. The Panel then acceded to the GMC’s submission that the hearing
continue on the basis that M had voluntarily waived his right to attend, as
demonstrated by his unwillingness to provide any further information about the
circumstances of his admission to hospital. M appealed.
Mitting J, applying the uncontroversial test in R v Jones
(Anthony William) [2002] UKHL 5, [2002] 2 WLR 524, held that a procedural
irregularity had occurred, since a defendant afflicted by incapacity or illness
should not be treated in the same way as a person who voluntarily absconded,
and it was only in very rare circumstances that a hearing should proceed in the
face of such incapacity or illness. As to the reluctance of M to provide
information about his condition over the telephone, the judge held that
hospital staff were unable to provide confidential information to third parties
over the telephone and it was significant that the GMC had not sought M’s
written consent to the provision of information about his condition.
Fairness
It is perhaps reassuring that obvious just outcomes were
reached in each of the above cases. Fairness is always a two-way street as
between complainant and accused doctor, but the complainant does not usually
face the possible destruction of his career if an injustice comes to pass. Even
if the GMC or its rules do not survive beyond the next few years, it is to be
hoped that the Administrative Court will continue to be alert to any attempts
to tip the balance of fairness against the interests of both the accused
practitioner and, indeed, the profession as a whole.
Richard
Booth
1 Crown Office Row
