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

A Professional Conduct Committee may refer a practitioner to the Health Committee only after excluding erasure as a possible sanction. The Health Committee cannot erase a practitioner’s name from the register, so the Professional Conduct Committee must retain jurisdiction while erasure remains a serious possibility. Once erasure has been excluded, referral remains discretionary. The Committee must weigh the public interest in a public disciplinary hearing and maintaining professional standards against the protective advantages of referral. A referral may nevertheless be lawful where the Professional Conduct Committee has determined that it cannot fairly continue because of abuse of process or breach of Article 6. A decision made without addressing the required question is unlawful and may be quashed unless withholding relief would cause such great injustice that another course is required.

The claimant sought judicial review of the Professional Conduct Committee’s decision to refer his complaint concerning Dr Jarman to the Health Committee under rule 51 of the 1988 Rules. The complaint arose from the treatment of the claimant’s son, who later died, and included allegations of professional misconduct and dishonesty.

The referral was made after psychiatric evidence raised concerns about Dr Jarman’s fitness to practise. The Committee had not heard argument on whether the proceedings should be stayed for abuse of process or under Article 6, and had not considered whether erasure remained a possible sanction. The Health Committee subsequently found Dr Jarman’s fitness to practise seriously impaired and imposed conditions preventing him from practising as a GP. The central issue was whether the referral was lawful and, if not, whether relief should be withheld.

1. Claim allowed. The decision of the Professional Conduct Committee to refer the matter to the Health Committee was quashed. The Health Committee’s subsequent decision was also quashed because it had never been lawfully seized of the case.
2. Rule 51 conferred a discretionary power to refer a case where fitness to practise might be seriously impaired by physical or mental condition. However, applying Crabbie v General Medical Council (Privy Council Appeal No 7 of 2002) and Sreenath v General Medical Council (Privy Council Appeal No 26 of 2002), the Professional Conduct Committee could not refer the matter while erasure remained a possible sanction. The Health Committee could impose suspension or conditional registration, but not erasure.
3. The principle was not confined to cases where all evidence had been heard or where the Committee was deciding penalty. It applied equally at the outset of an inquiry. The Committee had to ask whether erasure could be excluded before making the referral. It was not for the court to decide whether erasure was appropriate; that question belonged to the Professional Conduct Committee.
4. Even after erasure had been excluded, referral would not automatically follow. The Committee would still have to weigh the public interest in a public determination of professional misconduct and the maintenance of professional standards against the advantages of Health Committee proceedings.
5. A different position could arise if the Committee determined that it could not fairly continue because the proceedings were abusive or would breach the practitioner’s Article 6 rights. In that event, referral might be necessary despite the absence of a prior determination excluding erasure. No such determination had been made here.
6. The court declined to withhold relief. Although further proceedings would cause hardship and expense, it was not possible to say that a lawful reconsideration would inevitably produce the same result. The claimant was entitled to have the complaint determined according to law.

Permission for judicial review was granted by Maurice Kay J on part of the application. Permission was refused on an Article 2 argument, and no appeal was brought against that refusal. The present court determined the remaining domestic-law issues at first instance.