Holmes & Ors, R (on the application of) v General Medical Council & Ors

Permission to appeal should be granted where the proposed appeal has at least a realistic prospect of success. An apparent misunderstanding by a regulatory body of the penalty available for serious professional misconduct may materially affect the legality of the underlying decision. Serious professional misconduct is not confined to conduct warranting permanent revocation of a doctor’s licence. It may attract lesser sanctions, including temporary suspension, altered registration conditions or a reprimand.

The claimants challenged a decision of the General Medical Council’s Preliminary Proceedings Committee dated 9 September 1999. The Administrative Court quashed that decision, apparently relying on a subsequent GMC letter which suggested that serious professional misconduct required conduct warranting permanent revocation of a doctor’s licence to practise.

The claimants sought permission to appeal. The Court of Appeal considered whether the judge’s interpretation of the GMC’s position was sufficiently arguable to justify permission.

1. Permission granted. The court held that the proposed appeal had at least a realistic prospect of success and should proceed.
2. The Administrative Court appeared to have treated the GMC’s letter of 30 September 1999 as indicating that the Preliminary Proceedings Committee considered a doctor guilty of serious professional misconduct only where permanent revocation of the licence would be justified. That was plainly not the correct legal position.
3. A finding of serious professional misconduct may attract a range of lesser penalties, including temporary suspension, fresh conditions of registration or a reprimand. It was therefore properly arguable that the Preliminary Proceedings Committee, comprising several members and sitting with a qualified legal assessor, had not made the fundamental error attributed to it.
4. The court distinguished the suggested error from the different mistakes identified in Toth [2000] 1 WLR 2209 and Richards [2001] QBD 47. Those cases did not necessarily determine the present issue, which concerned whether the GMC had wrongly inferred the particular misunderstanding from the Committee’s decision.
5. The application for permission to appeal was allowed. The claimants abandoned any challenge to the costs order below. Costs in the appeal were ordered.

• Administrative Court: quashed the Preliminary Proceedings Committee’s decision of 9 September 1999, apparently because of the interpretation placed on the GMC’s letter of 30 September 1999.
• Court of Appeal (Civil Division): granted permission to appeal because the proposed appeal had a realistic prospect of success. Costs in the appeal were ordered.