No Common Law Duty of Care Owed by the GMC to Doctors Under Fitness to Practise Investigation in the Timing, Manner, or Content of Statutory Notifications

1. Introduction

This appeal arose from a negligence claim brought by the widow and children of a consultant anaesthetist (“the doctor”) who died by suicide shortly after receiving an email and letter from the General Medical Council (“GMC”) notifying him that an investigation into his fitness to practise had been opened and that his case would be referred to an Interim Orders Tribunal (“IOT”). The underlying referral to the GMC came from the police, following an allegation of sexual assault involving a minor in a dental setting.

The central legal issue was not breach or causation in the ordinary sense, but whether the GMC owed the doctor any common law duty of care in negligence in relation to (i) the timing, manner, and content of the notification and (ii) alleged preparatory welfare steps (liaison with police/employer, risk assessment, use of internal “suicide tool”, and related measures). The Human Rights Act 1998 claim (Article 2 ECHR) had been struck out below and was not pursued on appeal.

2. Summary of the Judgment

The Court of Appeal dismissed the appeal and upheld the strike-out / summary judgment. It held that:

• Applying the post-Robinson framework, the governing principles on public authority negligence are settled and the claim could properly be disposed of at the interlocutory stage.
• The GMC owed no duty of care to the doctor (a registrant under investigation) in relation to the statutory steps taken, including the notification of 2 May 2018 and the alleged omissions said to precede it.
• The statutory context—particularly the Medical Act 1983’s “overarching objective” of public protection and the mandatory obligations under the Fitness to Practise Rules—made recognition of such a duty incompatible with the statutory scheme.
• The “creation/control of danger” exception (associated with Dorset Yacht Co Ltd v Home Office [1970] AC 1004) did not apply: the GMC did not create a danger in the relevant sense; it implemented a statutory process.

3. Analysis

3.1 Precedents Cited (and How They Drove the Outcome)

A. The modern Supreme Court framework for public authority negligence

• Robinson v Chief Constable of West Yorkshire [2018] AC 736
  The Court treated Robinson as establishing that public authorities are generally subject to the same negligence principles as private persons, while emphasising the critical distinction between (i) positive acts causing harm and (ii) omissions/failures to confer a benefit. The Court of Appeal accepted that the 2 May 2018 notification could be characterised as a “positive act”, but held that the analysis cannot be conducted in a vacuum: statutory duties and the statutory purpose may restrict liability.
• CN v Poole Borough Council [2020] AC 780 (“Poole”)
  Poole was used to reinforce that a duty is not created merely because a public body operates a statutory scheme; and that “inconsistency with the statutory framework” can be the best explanation for why no duty is owed to those whose interests conflict with the protected class.
• HXA v Surrey County Council [2024] 1 WLR 335 (“SXH”) and Tindall v Chief Constable of the Thames Valley Policy [2025] AC 1046 (“Tindall”)
  These supported the proposition that where principles are settled, strike-out is appropriate to avoid unnecessary trials on breach/causation when no duty can arise on the pleaded facts.

B. Investigative/prosecutorial non-liability: no duty to those investigated

• Calveley v Chief Constable of the Merseyside Police & Others [1989] AC 1228
  Central to rejecting the attempt to craft a “narrow duty” around how an investigation is conducted. Lord Bridge’s characterisation of a duty owed by investigators to suspects as a “startling proposition” anchored the Court of Appeal’s view that the common law does not readily impose a duty of care to those under investigation, even if serious consequences foreseeably follow.
• Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 and SXH v Crown Prosecution Service [2017] 1 WLR 1401
  These cases supported the “conflict and chilling effect” rationale: the duty of investigators/prosecutors is owed to the public, and a duty to suspects would create conflicts and defensive practices.
• Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495
  Used both for (i) the caution against duties that would reshape operational decision-making and (ii) the point that mere “insensitive” conduct is not ordinarily actionable even if it results in psychiatric illness—relevant to criticisms of tone/content of communications.

C. Statutory regulators: incompatibility of a duty to those adversely affected

• Jain v Trent Strategic Health Authority [2009] 1 AC 853
  This was the key analogue: where a regulator exercises statutory powers designed to protect a class (there, care home residents; here, patients/public confidence/standards), the courts will not impose a duty of care to those whose interests may be harmed by the regulator’s performance of that protective function. The Court of Appeal rejected attempts to confine Jain to “without notice” judicial/quasi-judicial proceedings; the decisive feature was the statutory purpose and the conflict it creates.

D. Cases on interlocutory disposal and developing law

• Barrett v Enfield London Borough Council [2001] 2 AC 550
  Cited for the caution against strike-out in uncertain/developing areas; distinguished on the basis that (post-Robinson/Poole) the relevant principles are settled here.
• Lunak Heavy Industries (UK) Limited and another v Tyburn Film Productions Ltd [2025] EWCA Civ 1643
  Confirmed that “developing law” is not an absolute bar to strike-out.
• Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), Swain v Hillman [2001] 2 All ER 91, and ED & F Man Liquid Products v Patel [2003] EWCA Civ 472
  Provided the summary judgment test: “realistic” (not fanciful) prospects and the appropriateness of deciding short points of law.

E. A limited, unusual “support” duty? Why Leach did not help

• Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421
  The appellants invoked Leach to argue for a narrow welfare-focused duty. The Court treated Leach as fact-specific (a member of the public recruited to assist the police, with counselling provided to officers but not to her) and not a route around the settled line of authority denying duties to those being investigated/affected by protective public functions.

3.2 Legal Reasoning

A. Why “positive act” did not unlock liability

The appellants emphasised that the GMC “made things worse” by sending the 2 May 2018 notification. The Court accepted the act/omission distinction matters, but held that the “positive act” label did not answer the real question: whether a duty is compatible with a statutory regulator’s function and statutory obligations.

The GMC is “entirely a creature of statute”, with an express statutory “over-arching objective” of public protection (Medical Act 1983, s 1(1A)). The Court regarded it as artificial to hypothesise a “common law baseline” duty for a non-statutory regulator and then ask whether the statute excludes it. Instead, the statutory context is intrinsic to defining the relationship and the scope of any duty.

B. Mandatory notification and the “incompatibility” analysis

The Court placed weight on the mandatory structure of the Fitness to Practise Rules, especially:

• Rule 7(1): “As soon as is reasonably practicable” after referral under Rule 8, the Registrar must write informing the practitioner of the allegation and providing supporting documents and an invitation to respond.
• Medical Act 1983, ss 35A–35B: duties to obtain and disclose employment/arrangement details and to notify employers/responsible officers.
• Interim order provisions: the statutory pathway towards an IOT hearing where public protection may require immediate restrictions.

Against that background, imposing a duty requiring the GMC to alter timing/content or to undertake welfare screening as a precondition to statutory notification was found to risk conflict with the statutory objective and introduce uncertainty into protective action.

C. Rejection of “assumption of responsibility”

The Court endorsed the finding that the statutory functions of the GMC do not, “by their nature”, involve assuming responsibility to registrants to perform those functions with reasonable care for the registrant’s psychiatric welfare. There was no pleaded reliance or undertaking capable of creating a special relationship of the kind needed for assumption of responsibility.

D. Rejection of “creation/control of danger” (the Dorset Yacht route)

The Court rejected the attempt to treat the notification/investigation as a “source of danger” created by the GMC. The “danger” (stress from being investigated) arose from the existence of allegations requiring regulatory action; the GMC’s role was to implement the statutory scheme, not to introduce a new hazard of the Dorset Yacht kind.

E. The attempted “narrow duty” and why it was not arguable

The Court considered and rejected a confined duty “to take reasonable care for welfare in breaking bad news”. The difficulty was principled and structural: even a narrow duty invites courts to supervise regulatory communications and sequencing in a way that can conflict with swift public protection action, particularly where allegations are serious and the interim order route is engaged.

3.3 Impact

• For future negligence claims against regulators: Claimants face a high threshold in pleading a duty that does not cut across a protective statutory scheme, especially where the regulator’s actions are mandated and directed towards public protection.
• For “welfare” arguments: The judgment draws a line between (i) ethical/professional good practice (support services, sensitive drafting, liaison) and (ii) actionable private law duties. Improvements implemented after tragedies may evidence good governance, but do not necessarily translate into negligence liability.
• For procedural strategy: Courts may be more willing to strike out / grant summary judgment on duty issues in this area, treating it as “settled” after Robinson and Poole.
• For interim order contexts: Where allegations are serious and interim restrictions may be engaged, the public protection rationale will weigh heavily against duties that might delay, dilute, or complicate regulatory action.

4. Complex Concepts Simplified

4.1 “Duty of care” in negligence

A duty of care is the legal gateway: without it, a negligence claim fails regardless of how foreseeable harm might have been or how tragic the outcome. In public authority cases, the key question is often whether recognising a duty would be consistent with the authority’s legal role.

4.2 Positive acts vs omissions (“making things worse” vs “not making things better”)

The modern approach distinguishes:

• Positive act: the defendant does something that causes harm (e.g., physically injuring someone).
• Omission: the defendant fails to protect someone from harm caused by others or by circumstances.

Here, even treating the notification as a “positive act” did not establish a duty, because the act occurred within a mandatory statutory process aimed at protecting the public.

4.3 “Assumption of responsibility”

A duty can arise if a defendant undertakes responsibility for a person’s welfare and the person reasonably relies on that undertaking. Running a statutory scheme, without more, does not usually amount to such an undertaking.

4.4 “Incompatibility with the statutory scheme”

Courts will not impose a negligence duty if it would cut across the way Parliament designed the regulator to operate—especially where the regulator’s primary purpose is protecting the public and where imposing a duty to the investigated person would create conflicts.

5. Conclusion

The Court of Appeal’s decision confirms that the GMC’s statutory fitness to practise functions—particularly the obligation to notify registrants and progress protective steps such as IOT referrals—do not carry a parallel private law duty of care to protect the investigated doctor from psychiatric harm in the manner, tone, or timing of those communications or associated preparatory steps. The ruling situates the GMC alongside investigators and other protective public authorities: while welfare-sensitive practice is desirable and may be institutionally adopted, the common law does not convert that desirability into actionable negligence duties where doing so would conflict with the statutory public protection scheme.