Henshall v General Medical Council & Ors

In the GMC’s former disciplinary scheme, the Preliminary Proceedings Committee (“PPC”) had to decide whether the material appeared to raise a question of serious professional misconduct requiring referral to the Professional Conduct Committee (“PCC”). The familiar formulation of a real prospect of success was acceptable, but the PPC could not resolve disputed factual issues or evaluate conflicting professional evidence as if conducting the PCC’s inquiry. Fairness also required the PPC to decide whether to take into account a practitioner’s undisclosed response. A practitioner’s refusal of consent did not itself remove that discretion. The majority therefore required reconsideration by a reconstituted PPC.

Mrs Henshall and her husband complained to the General Medical Council about three doctors involved in a clinical trial concerning their premature daughters. The PPC decided not to refer the complaints to the PCC. It relied on the doctors’ responses, the Hey and Chalmers article, the Hull Report and other material, and declined to disclose Professor Southall’s responses.

Pitchford J refused the application for judicial review, holding that the PPC had applied the correct test, had properly dealt with disclosure, and was entitled to consider criticisms of the Griffiths Report. The appeal concerned the proper threshold and function of the PPC, fairness in relation to Professor Southall’s undisclosed responses, and the use of the Hey and Chalmers article.

1. Appeal allowed by the majority. Sedley LJ and Jonathan Parker LJ held that the PPC had identified the correct statutory test, but had failed properly to apply it. The question under rule 11(2) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 was whether the material appeared to raise a question whether a practitioner had committed serious professional misconduct. The PPC was not to answer that question conclusively.
2. The PPC’s role was a filtering role, more rigorous than the screener’s but distinct from the PCC’s forensic inquiry. It could assess the material placed before it and its apparent weight, but it could not resolve disputed factual issues or conflicting professional views. The PPC therefore exceeded its function by finding that the trial had been properly conducted and by making other merits findings.
3. Rule 16 did not create a general pre-decision bar on disclosure. The PPC had a discretion whether to take into account material submitted on terms that it was not disclosed to the complainant. It had to act fairly and should not rely on such material unless satisfied that there was good reason to do so despite the complainant’s inability to respond. Professor Southall’s refusal of consent did not determine the issue.
4. The majority held that the PPC had placed substantial reliance on the Hey and Chalmers article and had treated the Griffiths Report only through that article’s criticisms. That approach involved evaluating conflicting professional evidence and was beyond the PPC’s proper function. The material had to be reconsidered together, without the PPC determining which professional view was correct.
5. The matter was remitted to a reconstituted PPC for reconsideration. Auld LJ dissented, holding that the PPC had applied the correct test, acted within its filtering role, fairly dealt with disclosure, and was entitled to rely on the article and supporting material.

• Court of Appeal (Civil Division) [2005] EWCA Civ 1520: by majority, allowed the appeal and remitted the matter to a reconstituted PPC for reconsideration.
• High Court of Justice, Queen’s Bench Division: Pitchford J refused the application for judicial review.