R Goldsmith v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blake |
| Judgment Date | 08 December 2015 |
| Neutral Citation | [2015] EWHC 3991 (Admin) |
| Docket Number | CO/817/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 December 2015 |
[2015] EWHC 3991 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Blake
CO/817/2015
Mr R Davidson (instructed by Berrymans Lace Mawer) appeared on behalf of the Claimant
Mr I Hare (instructed by GMC Legal) appeared on behalf of the Defendant
By this application for judicial review, the Claimant seeks to quash a decision of the Assistant Registrar of the General Medical Council taken in December 2014 to review a decision of the Investigatory Committee dated 22 November 2013.
The decision made in November 2013 was to take no further action in respect of a complaint that had been made against the registrant, Dr Goldsmith. The complaint was made in August 2012 by the Interested Party, who pursuant to orders of the court will be referred to as A. The substance of the complaint concerned the terms of a letter written by the doctor following a telephone call that he held with A in the context of an occupational health referral. The telephone call was followed by a letter to A's employer and the terms of the letter in particular were the subject of the complaint by the patient.
The matter came before the GMC through its Assistant Registrar in August 2012. The investigation was considered in accordance with the General Medical Council (Fitness to Practise) Rules Order of Council 2004, as amended on a number of subsequent occasions. The Registrar, here the Assistant Registrar, examined the case under rule 4 and being satisfied that the complaint fell within the scope of the Act, which is the Medical Act 1983, referred the matter to Case Examiners (one medical and one lay) pursuant to powers under regulation 4(2).
The Case Examiners are created by the Rules rather than by statute. They examined the matter under rule 8 of the 2004 Rules. Under rule 8(2) they can, if they are unanimous, decide one of the following:
"(a) that the allegation should not proceed further;
(b) to issue a warning to the practitioner in accordance with rule 11(2);
(c) to refer the allegation to the Committee [that is the Investigatory Committee] under rule 11(3) for determination under rule 11(6); or
(d) to refer the allegation for determination by a Fitness To Practise Panel."
The Case Examiners decided that the appropriate response to the complaint was to issue a warning to the practitioner, under rule 8(2)(b). Their power to issue a warning is further set out under rule 11(2), but rule 11(3) gives the Registrant a right to make representations to an Investigatory Committee (IC) against the issue of a warning. Dr Goldsmith exercised that right and accordingly, the matter was referred to the IC. That Committee's powers of sanction are limited to a warning, but a warning is a sanction as it appears on the Registrant's registration for a period of five years. Only Fitness to Practise Panel FPP) can issue a more severe sanction.
The IC's powers are governed by rule 11(6). The Committee met in November 2013. It heard no fresh evidence of any sort from anybody, but merely received representations from counsel for the GMC and the registrant respectively. It decided in the particular circumstances of the case as it found them to be, to take no further action, notwithstanding the terms of the registrant's letter that it considered was a substantial departure from good practice. No warning was issued and the registrant's exercise of the right under rule 11(3) succeeded to that extent, although he acknowledged that the terms of the letter were inappropriate and expressed regret for them.
There matters might have rested, but shortly after the decision the GMC received representations from the Interested Party (IP) who was not satisfied about the outcome of her complaint and in particular was not happy that she had not been informed by the GMC of the date for the IC's hearing of the matter. The hearing was in public although one or two issues resulted in them being heard in private.
The first response of the Registrar in the correspondence with the IP was that the matter had become final and there was nothing further that could be done, but by August 2014 a further communication indicated that advice was to be taken as to whether there was indeed a power of review. As indicated in the opening of this judgment, in December 2014 the Assistant Registrar decided that she would exercise that power.
It is necessary to point out that the power has not yet been exercised in the sense that there has been no outcome of that review because once it was communicated, the present challenge was brought. The challenge is directed simply to the existence of the power to review in the factual circumstances that I have briefly outlined to date. It is not to any reasoned decision based upon other public law grounds of challenge which might exist.
At this stage, it is necessary to set out the provisions of rules 11 and 12. Rule 11 reads as follows:
"11. (1) If it appears to one or both of the Case Examiners that an allegation is one with respect to which he or they may wish to give a warning, he or they shall inform the Registrar, and the Registrar shall write to the practitioner to inform him that he is entitled to make written representations within the period of 28 days from the date of the letter.
(2) Subject to paragraph (3), if the Case Examiners are satisfied that the allegation ought not to be considered by a FTP Panel and —
(a) the practitioner has made no representations under this rule; or
(b) after considering any representations made, the practitioner has not contested the facts upon which the allegation is based,
they may if they think fit issue a warning to the practitioner.
(3) After considering any representations made by the practitioner, where —
(a) the practitioner has requested that the allegation be referred for an oral hearing before the Committee; or
(b) the Case Examiners otherwise consider it appropriate to do so,
the Case Examiners shall refer the allegation to the Committee for an oral hearing in accordance with this rule.
(4) Where the Committee —
(a) is considering an allegation under rule 9 which has been referred as a result of the failure of the Case Examiners to agree as to disposal under rule 8(2)(a) or (d); and
(b) considers that the allegation is one with respect to which it may wish to give a warning.
it shall inform the Registrar, and the Registrar shall write to the practitioner in accordance with paragraph (1), and paragraphs (2) and (3) shall apply as if references to the Case Examiners were references to the Committee.
(5) Where an allegation has been referred to the Committee for an oral hearing under paragraph ( 3) or (4), the Registrar shall give notice to the practitioner —
(a) particularising the allegation against the practitioner and the facts upon which it is based;
(b) specifying the date, time and venue of the hearing;
(c) informing him of his right to attend the hearing and to be represented at a hearing in accordance with rule 33;
(d) informing him of the power of the Committee to proceed in his absence under rule 31; and
(e) informing him of the Committee's powers of disposal as set out in paragraph (6).
(6) The Committee shall consider any allegation referred to it under paragraph ( 3) or (4) and shall —
(a) determine that the matter should not proceed further;
(b) dispose of the allegation by issuing a warning; or
(c) where new information adduced into evidence at the hearing indicates that to do so would be appropriate, refer the allegation for determination by a FTP Panel.
(7) Where an allegation has been referred for an oral hearing under paragraph ( 3) or (4), the order of proceedings before the Committee shall be as follows —
(a) the Presenting Officer must outline the allegation and the facts upon which it is based and may adduce any relevant —
(i) documentary evidence, or
(ii) where the Committee considers such evidence is necessary to enable it to discharge its functions under paragraph (6), oral evidence; and
(b) the practitioner may respond to the allegation and may adduce any relevant —
(i) documentary evidence, or
(ii) where the Committee considers such evidence is necessary to enable it to discharge its functions under paragraph (6), oral evidence;
(c) the parties may make such further submissions as the Committee may allow;
(d) before making its decision, the Committee may adjourn for further investigations to be carried out, including an assessment of the practitioner's performance or health under Schedule 1 or 2 or an assessment of knowledge of English in accordance with Schedule 3; and
(e) the Committee shall announce its decision, and shall give its reasons for that decision. (8) In making its decision, the Committee shall, where appropriate, take into account the practitioner's previous fitness to practise history with the General Council or any other regulatory
body.
(9) The Registrar shall serve written notification of the Committee's decision upon the practitioner as soon as reasonably practicable.
(10) The notice of decision shall —
(a) where the Committee decides that the matter should be referred to a FTP Panel, particularise the allegation against the practitioner that is to be referred; and
(b) where the Committee decides that the matter should be disposed of by issuing a warning, particularise the terms of the warning issued to the practitioner.
Rule is entitled Review of decisions and provides:
12. (1) Subject...
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