David v General Medical Council

Factual and Procedural Background

The Claimant sought an order to quash the decision of the Preliminary Proceedings Committee (PPC) of the General Medical Council (GMC) dated 18 March 2004, which referred the question of whether the Defendant committed serious professional misconduct in February 1999 during the treatment of a patient at Basildon Hospital to the Professional Conduct Committee (PCC) for public inquiry.

The GMC, established under the Medical Act 1983, regulates medical practitioners through committees including the PPC and PCC. The PPC decides whether cases involving allegations of serious professional misconduct should proceed to inquiry by the PCC. The process involves initial screening by a medical screener, followed by consideration by the PPC, applying the Procedure Rules of 1988.

The Defendant, a consultant anaesthetist employed by the Basildon and Thurrock General Hospitals NHS Trust, was responsible for the care of the patient who died following withdrawal of treatment. Concerns about the Defendant's conduct led to suspension and investigation of multiple cases, including the patient’s. Initially, the PPC decided not to refer any cases to the PCC. Subsequently, new expert reports and complaints were submitted, prompting the medical screener to refer the patient’s case to the PPC again.

The PPC reviewed conflicting expert opinions concerning the appropriateness and timing of the withdrawal of treatment and the Defendant’s consultation with colleagues and family. Despite some charges being deemed unsustainable, the PPC found a real prospect that the allegations relating to withdrawal of treatment could constitute serious professional misconduct and referred the case to the PCC.

The Defendant challenged the PPC’s decision by judicial review on multiple grounds, including alleged error in reopening the case, insufficiency of evidence to prove misconduct, failure to apply the real prospect test, improper consideration of public interest, and failure to consider material evidence in the Defendant’s favor.

Legal Issues Presented

1. Whether the GMC erred in deciding to re-open the patient’s case under the Procedure Rules.
2. Whether the material before the PPC was capable of proving beyond reasonable doubt that the Defendant committed serious professional misconduct.
3. Whether the PPC failed properly to consider if there was a real prospect of establishing serious professional misconduct before referring the case to the PCC.
4. Whether the PPC took into account an impermissible matter, namely the public interest in testing ethical questions, or gave disproportionate weight to it.
5. Whether the PPC failed to consider material evidence favorable to the Defendant, specifically the report of an expert witness.

Arguments of the Parties

Appellant's Arguments

• The GMC erred in reopening the case as the new expert report did not constitute "information" under the Procedure Rules to justify referral.
• The evidence before the PPC was insufficient to prove serious professional misconduct beyond reasonable doubt.
• The PPC failed to apply the correct real prospect test when deciding to refer the case.
• The PPC impermissibly considered the public interest in resolving ethical questions or gave it excessive weight.
• The PPC neglected to consider material evidence favorable to the Defendant, specifically the report of Dr Coates.

Appellee's Arguments

• The new expert report constituted new information under the Procedure Rules, justifying reopening the case.
• There was conflicting expert evidence, and the PPC was entitled to conclude there was a real prospect of establishing serious professional misconduct.
• The PPC properly applied the real prospect test and exercised appropriate caution.
• The public interest in investigating allegations of serious professional misconduct, including those involving withdrawal of treatment, was a legitimate factor for the PPC to consider.
• The PPC did consider the Defendant’s favorable evidence, including Dr Coates’ report, as it was enclosed in solicitors’ submissions and taken into account.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by outlining the legislative and procedural framework governing the GMC’s disciplinary process, emphasizing the filtering role of the PPC and the need for caution in deciding not to refer cases. It highlighted the importance of public confidence and the legitimate expectation that serious professional misconduct complaints be fully investigated.

On the issue of reopening the case, the Court interpreted "information" in the Procedure Rules broadly to include new expert medical reports offering differing opinions, not merely new facts. It rejected the argument that only new facts justify reopening, holding that a new expert opinion can constitute new information warranting reconsideration.

The Court stressed the limited role of judicial review in assessing the PPC’s decision, recognizing that the PPC is medically qualified and that the Court should only intervene if the decision was perverse. It noted the conflicting expert evidence regarding the Defendant’s conduct, including criticisms and defenses, and affirmed that the PPC was entitled to conclude there was a real prospect of proving serious professional misconduct.

Regarding the real prospect test, the Court found that the PPC had applied it appropriately, implicitly concluding that the charges could be proved if the evidence was accepted. The Court acknowledged some ambiguity in the PPC’s reference to the Defendant’s actions being "at the margins of clinical practice" but deemed this insufficient to undermine the decision.

The Court considered the submission that the PPC improperly took into account public interest in ethical questions but found that the PPC’s reference to public interest related to the importance of investigating serious allegations involving withdrawal of treatment, not to resolving controversial ethical disputes. Thus, the PPC’s consideration of public interest was legitimate and proportionate.

Finally, the Court rejected the claim that the PPC failed to consider material evidence favorable to the Defendant, noting that the relevant expert report was enclosed in solicitors’ correspondence and was necessarily considered by the PPC.

In sum, the Court found no error of law or procedural unfairness in the PPC’s decision and concluded that the judicial review claim should be dismissed.

Holding and Implications

The Court DISMISSED the claim for judicial review challenging the PPC’s decision to refer the case to the PCC.

The direct effect of this decision is that the referral of the charges against the Defendant to a public inquiry by the PCC stands, allowing the disciplinary process to proceed. The Court emphasized the limited scope of judicial review in such matters and did not establish any new legal precedent beyond affirming existing principles regarding the PPC’s role, the interpretation of "information" under the Procedure Rules, and the application of the real prospect test. The decision reinforces the cautious but permissive approach required of regulatory bodies in filtering professional misconduct cases to balance public protection, practitioner safeguards, and public confidence in medical regulation.