R (Remedy UK Ltd) v General Medicial Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Elias,Mr Justice Keith
Judgment Date28 May 2010
Neutral Citation[2010] EWHC 1245 (Admin)
Docket NumberCase No: CO/2309/2009

[2010] EWHC 1245 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before: Lord Justice Elias

and

Mr Justice Keith

Case No: CO/2309/2009

Between
The Queen (on the application of Remedy UK Limited)
Claimant
and
The General Medical Council
Defendant

Mr Thomas de la Mare and Mr Tristan Jones (instructed by Leigh Day, Solicitors) for the Claimant

Mr Robert Englehart QC and Miss Gemma White (instructed by the General Medical Council) for the Defendant

Hearing date: 11 May 2010

Lord Justice Elias

Lord Justice Elias :

1

The General Medical Council (‘the GMC’) exercises a number of functions which are designed to achieve its statutory objective, defined in section 1 of the Medical Act 1983 as being:

“to protect, promote and maintain the health and safety of the public.”

2

These functions include taking disciplinary action against members of the medical profession in certain defined circumstances where their fitness to practise is in question. This case raises an issue as to the limits of its disciplinary jurisdiction.

3

As part of a policy called “Modernising Medical Careers”, the Department of Health and others devised and introduced a new scheme for recruitment of junior doctors, and a new computerised system of making appointments for junior doctors' training posts. The recruitment scheme was termed “Specialty Selection and Recruitment” (‘SSR’), and the appointments scheme “The Medical Training Appointments System” (‘MTAS’).

4

It is now generally recognised that MTAS was a deeply flawed scheme. It was comprehensively examined in a number of public investigations, including by the House of Commons Health Select Committee, a Department of Health investigation chaired by Professor Neil Douglas, and an independent enquiry chaired by Professor Sir John Tooke. The Select Committee Report referred to the introduction of the new specialty training arrangements as “disastrous”. The Douglas Report said that the introduction of MTAS had:

“sparked the biggest crisis in the medical profession in a generation”, and in a legal challenge to the modification of the MTAS scheme brought before Goldring J (R (on the application of Legal Remedy UK Limited) v Secretary of State for Health) [2007] EWHC 1252 (Admin), 96 BMLR 191) the judge dismissed the application but observed that:

“The premature introduction of MTAS has had disastrous consequences.”

5

The claimant is a company limited by guarantee. It was founded to represent doctors who had lost confidence in these training and employment reforms. It campaigns on a wide range of medical and professional issues affecting doctors, especially junior doctors. As part of its campaign, it is seeking to subject the Chief Medical Officer for England, Sir Liam Donaldson, who occupies a senior executive position at the Department of Health, and Professor Sarah Thomas, who chaired the MTAS recruitment and selection steering group, to the GMC's disciplinary processes. By this means it is seeking to hold them accountable for what the claimant perceives to be their responsibility in allowing the MTAS scheme to be adopted and implemented in circumstances which have caused damage to doctors, patients and the standing of the profession.

6

The claimant's solicitors' detailed letter of complaint to the GMC was in the following terms:

“We are instructed on behalf of RemedyUK and are writing to request that these two doctors be investigated for their role as managers integrally involved in the introduction of [MTAS and SSR] ….. We believe that their professional and managerial actions and conduct in relation to SSR/MTAS fell seriously below the high standards that are expected by the profession, as laid out in ‘Management for Doctors' and elsewhere. Their deficient performance, and their failure to meet the published GMC Guidance for Doctors in management roles, was so significant that their actions amount to misconduct and/or deficient professional performance; we therefore submit that their fitness to practice in this managerial field of work is impaired under section 35C of the Medical Act 1983.”

7

Under the heading “Basis of the complaint” the letter described what it perceived as being the principal failings of the SSR/MTAS systems as follows:

“Our specific complaints in relation to SSR/MTAS relate to: the unfitness for purpose of both the computer system and the shortlisting and interviewing system; the lack of piloting and the decision to proceed before it had been shown to be fit for purpose; and the failure to adequately heed or address the risks that were identified in advance. The consequential impact on individual doctors and their patients and on the medical community has been substantial.”

8

The letter then identifies what it asserts have been the adverse consequences for patients, junior doctors, and the NHS finances. As to the impact on doctors, it referred to a study conducted by the Dean of the Royal College of Psychiatrists who carried out a survey of some 790 junior doctors and found that they showed an increased risk of suicide and other psychiatric morbidity resulting from stress, and that the loss of morale may well have adversely affected patient care. It was also alleged that the insistence on introducing a defective system had undermined the standing of the profession and had led to a loss of credibility and authority.

9

Sir Liam Donaldson and Dr Thomas were specifically identified because it was alleged that as medical practitioners they bore the greatest degree of responsibility for the design and implementation of SSR/MTAS. Sir Liam Donaldson was criticised in particular because he had ultimate responsibility for the design and delivery of MMC. In addition it was said that he had ignored clear warnings to delay the implementation of MTAS because of the problems it would create. Professor Thomas was chosen because she was chair of the key steering group concerning recruitment and training which had been responsible in particular for developing the rules for handling applications; also she had attended all the high-level decision making committees when, it is alleged, the decision ought to have been made to stop -or at least delay—the implementation of the MTAS system.

10

Finally, the complaint letter referred to GMC guidance entitled “Management for Doctors” and identified certain areas of good practice identified in that guidance which had allegedly been breached.

11

By a letter dated 12 December 2008 the Registrar of the GMC determined not to refer the claimant's allegations to case examiners for further investigation. The reasons given were as follows:

“Section 35C is concerned with allegations that a registered medical practitioner's fitness to practice is impaired. It is only ‘misconduct’ or ‘deficient professional performance’ material to a practitioner's fitness to practice that can fall within section 35C(2): see, for example, Calhaem v General Medical Council [2007] EWHC 2606 at [26]. Bearing that in mind, I have concluded that your allegations against Sir Liam Donaldson and Dr Thomas do not fall within section 35C(2) and that, accordingly, I should not refer them to case examiners.

You suggest in your letter that there is here a case of either or both of ‘deficient professional performance’ and ‘misconduct’. I address each of these concepts in turn.

Deficient professional performance

Deficient professional performance was first introduced into the Medical Act 1983 by the Medical (Professional Performance) Act 1995. It was introduced to fill a perceived lacuna in the 1983 Act. There have subsequently been changes of terminology. However, it is plain on the authorities, and on the statutory scheme (see, for example, the provisions about performance assessments), that section 35C(2) is concerned with deficient performance in a clinical setting. I do not consider that allegations such as you make, which have nothing to do with practice of medicine by Sir Liam Donaldson or Dr Thomas, can sensibly be said to fall within section 35C(2).

Misconduct

Your letter has assembled a large number of selected quotations about the perceived deficiencies of MTAS and its implementation. It is, nevertheless, non-specific about the actual conduct of, respectively, Sir Liam Donaldson and Dr Thomas that is said to have constituted misconduct by them as individuals. But, irrespective of that feature, I have concluded that your letter does not make allegations that would fall within section 35C(2)(a) of the 1983 Act. That sub-section is directed at conduct material to a practitioner's fitness to practise. Whatever the conduct of Sir Liam Donaldson and Dr Thomas with regard to MTAS, I do not consider that it can sensibly be said to impinge on their fitness to practice as medical practitioners.

12

The Registrar added that the management guidance was concerned with the role of those in managerial positions connected with the provision of medical services to patients within the NHS or elsewhere. It did not apply to the situation of these two doctors because they were not exercising functions in a clinical setting, and therefore their actions had no bearing on their fitness to practise.

13

There is a dispute between the parties as to whether the allegations of misconduct are sufficiently specific or not. I will return to that issue later in this judgment, but it is not the central issue in the case. The Registrar has taken the view that even if the allegations were sufficiently specific, they would still not fall within the terms of section 35C(2). The issue of principle is whether...

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