David v General Medical Council

A professional regulator’s filtering committee should refer a case for inquiry where there is a genuine possibility that serious professional misconduct can be established. It must exercise caution before excluding a complaint and should not normally resolve substantial conflicts of factual or expert evidence.

On judicial review, the court should show particular restraint when assessing competing medical opinions. Greater scrutiny is appropriate for questions of legal interpretation. A new expert medical report may constitute new information permitting reconsideration under the applicable procedural rule. Public interest in investigating substantial allegations concerning withdrawal of medical treatment is a legitimate consideration, provided the case is assessed by reference to the real-prospect test.

The claimant, a consultant anaesthetist, sought judicial review of the General Medical Council Preliminary Proceedings Committee’s decision to refer allegations concerning the withdrawal of treatment from a patient to the Professional Conduct Committee.

The claimant argued that the matter had previously been screened out, that the evidence could not support a finding of serious professional misconduct, that the Committee had failed to apply the real-prospect test, had relied on an impermissible public-interest consideration, and had ignored favourable expert evidence.

The central issues were whether the complaint could lawfully be reopened, whether the referral was irrational or inadequately reasoned, and whether the Committee had taken relevant matters into account.

1. The claim was dismissed. The Committee was entitled to refer the allegations where the material disclosed a real prospect that serious professional misconduct could be established.

2. Under rule 14 of the Procedure Rules, “information” has its ordinary wide meaning. A new expert medical report may constitute information even where it offers a different interpretation of facts or records already considered. The rule is concerned with preliminary consideration and does not require a new factual event.

3. The PPC must exercise caution before refusing a referral and should not normally resolve substantial conflicts of evidence, including conflicts between medical experts. The reviewing court must be still more cautious. It should interfere with an assessment of medical evidence only in the clearest case, and only where no reasonable medically qualified committee could have concluded that there was a real prospect of serious professional misconduct.

4. The decision letter, read as a whole, showed that the Committee applied the real-prospect test. The use of the words “if proved” indicated that the charges were capable of proof and, if proved, capable of constituting serious professional misconduct. The Committee’s imprecise reference to conduct at the margins of clinical practice did not justify intervention, particularly since the issue could be raised under rules 19 or 24.

5. Public interest in the investigation of substantial allegations concerning withdrawal of treatment leading to a patient’s death was a legitimate consideration. Genuine ethical disagreement, without relevant professional guidance or legal rules, may make it difficult to establish serious professional misconduct; but that qualification did not apply on the facts disclosed by the charges.

6. The Committee had considered the favourable expert material because it had considered the solicitors’ letters which enclosed and drew attention to it. The challenge based on failure to take that evidence into account therefore failed.