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

Judicial review decisions by bodies such as the GMC’s Preliminary Proceedings Committee generally stand or fall by the reasons in which they are promulgated. Ex post facto evidence from decision-makers should be admitted only exceptionally, principally to clarify an ambiguity, not to contradict the decision as expressed.

A Preliminary Proceedings Committee must apply the statutory screening function. It must decide whether there is an arguable case requiring referral, rather than resolve the facts or determine finally whether serious professional misconduct has occurred. The range of conduct capable of constituting serious professional misconduct is not confined to conduct warranting erasure from the medical register. Lesser sanctions must also be taken into account.

The claimants challenged GMC decisions not to refer complaints against two doctors to the Professional Conduct Committee. Ouseley J quashed both decisions, holding that the wrong legal test had been applied. Dr Sengupta, an interested party, appealed against the order affecting his case.

He sought to adduce statements from members of the Preliminary Proceedings Committee concerning their understanding of the applicable test. The central issues were whether that fresh evidence should be admitted and whether the decision letter showed that the Committee had exceeded its screening function or misdirected itself about the meaning of serious professional misconduct.

1. Fresh evidence. The application to adduce evidence from members of the Preliminary Proceedings Committee was refused. Decisions of bodies such as the PPC generally stand or fall by the terms in which they are promulgated. Evidence of a decision-maker’s subsequent state of mind, intention or understanding should be received only in the most exceptional circumstances. It may clarify an ambiguity, but should not vary or contradict the reasons appearing on the face of the decision.
2. The proposed evidence could also have been obtained with reasonable diligence before the hearing below. The principles in Ladd v Marshall [1954] 1 WLR 1489 remained applicable under the CPR, as confirmed in Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318.
3. Applicable PPC function. The PPC’s role was a preliminary filtering function. It was not entitled to resolve disputed facts or make a definitive assessment of whether the practitioner was guilty of serious professional misconduct. The approach described in R v GMC, ex parte Toth [2000] 1 WLR 2209 and R (on the application of Richards) v GMC [2001] Lloyd's Law Reports (Medical) 47 required caution and consideration of whether an arguable case should proceed to public inquiry.
4. The letter to the claimants’ solicitors, read as a whole, showed that the PPC had treated itself as having a fact-finding role. Its concurrence with findings about the doctor’s conduct and its definitive conclusions went beyond the proper screening function.
5. The reference to the permanent revocation of a doctor’s licence showed a further error of law. Serious professional misconduct was not limited to conduct justifying erasure. Conduct warranting suspension, conditional registration or another lesser sanction could also fall within the relevant range.
6. The appeal was dismissed. The respondent and the claimants were awarded their costs of the appeal, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division) [2002] EWCA Civ 1838: dismissed Dr Sengupta’s appeal against Ouseley J’s order quashing the PPC decision.
• High Court, Queen’s Bench Division, Administrative Court: Ouseley J quashed the GMC decisions not to refer the complaints to the Professional Conduct Committee.