R (on the application of Goldsmith) v General Medical Council

[2015] EWHC 3991 (Admin) Judgement date: 8 December 2015

The Claimant in this matter, Dr Goldsmith (‘G’) applied for Judicial Review and sought to quash a decision of the Assistant Registrar of the General Medical Council (‘GMC’) taken in December 2014 to review a decision of the Investigating Committee (IC) dated 22 November 2013 not to impose a warning.

Background

In August 2012, a complaint was made to the GMC by an individual referred to as A. The substance of the complaint concerned the terms of a letter written by G, following a telephone call that he had with A in the context of an occupational health referral.  The telephone call was followed by a letter from G to A’s employer and the terms of the letter in particular were the subject of the complaint by A.

Following receipt of A’s complaint, the GMC’s Assistant Registrar examined the case and, being satisfied that the complaint fell within the scope of the Medical Act 1983, referred the matter to the Case Examiners pursuant to powers under Rule 4(2) General Medical Council (Fitness to Practise) Rules Order of Council 2004 (the Rules).

The Case Examiners decided that the appropriate response to A’s complaint was to issue a warning to G, under Rule 8(2)(b) of the Rules. In these circumstances, the registrant concerned has the right to make representations to an IC against the issue of a warning. In this case, G exercised this right and accordingly the matter was referred to an IC.

The IC met in November 2013. It heard no fresh evidence from anyone but merely received representations on behalf of the GMC and G respectively. The IC decided to take no further action, notwithstanding the terms of G’s letter to A, which it considered to be a substantial departure from good practice. This meant that G was therefore not issued with a warning.

Following the decision of the IC, the GMC received representations from A who was not satisfied with the outcome of her complaint. In particular, she expressed concern that she had not been informed by the GMC of the date for the IC. 

In December 2014, the Assistant Registrar of the GMC determined that a review would be undertaken in respect of the IC’s decision in November 2013 not to issue a warning to G. Once this decision was communicated to G, a challenge was made by him as to the existence of the power to review the IC’s decision. This was the subject of the Judicial Review.

Application for Judicial Review

It was submitted on behalf of G in his application for Judicial Review, that Rule 12(1)(b) refers to the power of review of a decision not to refer an allegation to the Committee or a Fitness to Practise Panel (FPP). In this case, it was submitted there was neither a decision not to refer nor even a power to refer to the FPP as the IC were limited in its function in deciding whether or not there should be a warning issued to G. It was submitted that the express power of review contained within Rule 12(1)(a), (b), (c) or (d) does not include a decision that the matter should not proceed further within the meaning of Rule 11(6)(a). It was also argued on behalf of G that if the rule maker had intended that the Registrar could review any decision of the Case Examiners or the IC, the Rule would have said so.

It was submitted on behalf of the GMC that the proper construction of the Rules should be read in the light of the overriding objectives of the Medical Act, that the safety of the public is the predominant purpose. It was submitted that a broad interpretation should be given to Rule 12, which would enable it to encompass any decision which does not lead to a referral to the FPP, whether or not there was a decision to consider such a reference or whether or not there was even a power to have considered such a reference or made in the particular case. It was therefore submitted that there should be a broad interpretation of the rules.

Decision

The issue to be determined in this application was whether the decision of the IC not to issue a warning to G could be reopened and reviewed by the GMC. In his judgement, Mr Justice Blake stated that ‘although the purpose of the Rules is not the protection of the registrant’s interests, their terms regulate what the requirements of fairness are to all interested parties. The limits to review set out in the Rules form the balance between, on the one hand, the important public interest of protecting the public from harm by a registrant whose fitness to practise is impaired and the principle of finality where the conduct is not of the more serious variety, therefore avoiding duplication of procedures and reopening of procedures and prolongation of what is undoubtedly a difficult and stressful allegation’.

It was held that, if the rule maker had intended that any decision which resulted in the matter not proceeding to a FPP, for whatever reason, could be capable of review, the Rules would have said so, but they did not. Further, the absence of a power to review a decision of the IC not to issue a warning in the circumstances such as those in G’s case, may well have been because the rule maker did not consider that a review of whether a warning should be issued or where insight had been shown, was not necessary in the public interest.  Considerations of finality and proportionality meant that the IC’s decision was to be final.

It was determined that, in G’s case, the power of the Assistant Registrar to review the decision made by the IC did not exist on the facts of this case and within the context of the decision making process.  The decision of the Assistant Registrar was therefore quashed.

This case concerned an examination of the procedural rules upon which the Regulatory Body operates its fitness to practise functions. The regulator sought to argue that the procedural rules should be given a broad interpretation as its primary function is the protection of members of the public/patients. The case emphasises the importance of such rules being given their natural meaning in order to ensure fairness to all parties involved in fitness to practise proceedings. In this case, the concerns in relation to the registrant’s practise were not of such a serious nature, that a referral to the FPP was required.  In these circumstances, the judgement confirms the importance of final decisions being made to prevent on-going and protracted proceedings and the associated stress caused to registrants who are the subject of fitness to practise allegations.