The Council for the Regulation of Health Care Professionals v General Medical Council & Anor

A disciplinary tribunal’s stay for abuse of process may amount to a final decision capable of appeal where it brings proceedings to an effective end. The exceptional doctrine of abuse of process is principally concerned with misuse of state power. Entrapment by a private investigator may qualify only in cases of sufficiently gross misconduct such that reliance on the resulting evidence would compromise the integrity of the judicial or disciplinary process. A tribunal must distinguish private conduct from state entrapment and consider public protection, professional standards and public confidence. Evidence obtained by private entrapment is not automatically inadmissible under Police and Criminal Evidence Act 1984, section 78.

The Council appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a Fitness to Practise Panel’s decision to stay disciplinary proceedings against Dr Saluja for abuse of process and to exclude covertly recorded evidence under section 78 of the Police and Criminal Evidence Act 1984.

The journalist had posed as a patient and offered money for a sickness certificate. The Panel treated the circumstances as entrapment and stayed the proceedings. The issues were whether the stay was a final decision within section 29 and whether the Panel had been manifestly wrong in applying the law.

1. Jurisdiction. A stay for abuse of process is the effective end of disciplinary proceedings. It prevents the allegations from being determined on their merits and prevents any penalty from being imposed. Applying the purposive construction adopted in CRHCP v General Medical Council [2004] EWCA Civ 1356, such a stay is a final and relevant decision under section 29 of the National Health Service Reform and Health Care Professions Act 2002. The Council could therefore appeal if the decision was manifestly wrong.
2. Applicable principles. A stay is exceptional. Its rationale is the court’s refusal to permit misuse of state power to compromise the integrity of the justice system, as explained in Regina v Horseferry Road Court ex parte Bennett [1994] 1 AC 42 and R v Looseley [2001] 1 WLR 2060. The position is materially different where the conduct is by a private journalist. A stay may nevertheless be possible in an exceptionally serious case of private entrapment, but the misconduct would have to be sufficiently gross to make reliance on the evidence incompatible with the integrity of the proceedings.
3. The Fitness to Practise Panel had to exercise its discretion on all the circumstances. It had to distinguish journalists from state agents and consider the public-protection purpose of professional discipline, the maintenance of proper professional standards and public confidence in the profession. Article 8 infringement was only a factor in the assessment of abuse of process or fairness under Article 6. Section 78 concerns admissibility and does not provide an automatic remedy for entrapment.
4. The Panel had been directed as though the journalist could be substituted for a police officer in the Looseley test. It therefore applied the law incorrectly. It failed to give proper weight to the difference between a doctor being pressed to provide a false certificate and a drug dealer being importuned by an undercover officer. The offer of money, although improper, did not amount to misconduct sufficiently serious to compromise the integrity of the disciplinary process.
5. The appeal was allowed. The stay and the exclusion of the evidence under section 78 were quashed. The case was remitted to the Fitness to Practise Panel to determine the allegations of serious professional misconduct and, if necessary, sanction.

High Court (Administrative Court): The Council’s appeal from the Fitness to Practise Panel was allowed. The stay and exclusion order were quashed, and the matter was remitted to the Panel.