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

Where a professional disciplinary committee has materially relied on erroneous material, reconsideration may properly extend to all related complaints if that material significantly influenced the committee’s general assessment. The fact that the error affected individual respondents to different degrees does not prevent remittal where its overall significance was substantial. The remitting court may direct reconsideration by the body operating under a new procedure while requiring application of the former statutory scheme.

The Court of Appeal had previously allowed the appeal by a majority and ordered the complaints against three doctors to be remitted to a freshly constituted Preliminary Proceedings Committee. On reconvening, the court reconsidered whether remittal was appropriate for Dr Spencer and Dr Samuels, whose complaints were said to be affected only marginally by the Committee’s erroneous reliance on a British Medical Journal article by Hey and Chalmers. The central issue was whether that reliance materially affected the complaints concerning those doctors and, if so, the appropriate body and procedure for reconsideration.

The court unanimously adhered to its previous order allowing the appeal, subject to an amendment concerning the body to which the complaints were remitted.

1. Materiality of the error. The court rejected the submission that remittal was inappropriate for Dr Spencer and Dr Samuels because the erroneous reliance on the Hey and Chalmers article affected them less directly than Professor Southall. The article had played a substantial part in the Preliminary Proceedings Committee’s general consideration of the complaints against all three doctors. Its significance was not immaterial in relation to either Dr Spencer or Dr Samuels. The remittal order therefore properly applied to each complaint considered individually.
2. Remittal and procedure. Instead of remitting the complaints to a freshly constituted Preliminary Proceedings Committee, the complaints were remitted to the General Medical Council’s Investigations Committee, established under the new procedure but applying the former statutory scheme under the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee Procedure Rules 1988. The matter was to proceed with the utmost expedition.
3. Costs. The General Medical Council was to bear the appellant’s costs in the court below, with detailed assessment under the Community Legal Service Cost Regulations of 2000. The interested parties’ costs were to lie where they fell.

1. Court of Appeal (Civil Division): The appeal had previously been allowed by a majority by an order of 28 June. On reconvening, the court unanimously adhered to that order, amended the remitting body, and allowed the application in [2006] EWCA Civ 364.
2. Queen’s Bench Division, Administrative Court: Appeal from a decision of Mr Justice Pitchford. The lower decision’s citation and precise disposition are not stated in the judgment.