Pal v General Medical Council

At the permission stage of judicial review, a challenge to a professional regulator’s referral decision is arguable where there is a credible question whether the decision-maker applied the correct statutory threshold. An initial assessment may be a screening exercise with a low threshold, but it must not be reduced to an undefined or excessively minimal filtering exercise. The court may grant permission where the issue is arguable and raises a matter of general importance, even though the claim may ultimately fail. The court should also identify which grounds are properly pursued.

A registered doctor sought judicial review of the General Medical Council’s decision to refer two complaints to case examiners. The case examiners had subsequently closed the cases. Permission had been refused on the papers by McCombe J on 21 January 2008. On renewal, the GMC argued that the claim was academic, premature, out of time, and lacked merit. The claimant argued that the referrals had continuing professional consequences and that the Registrar had applied the wrong test under section 35C(2) of the Medical Act 1983. The central issue was whether the referrals were arguably unlawful or irrational because the Registrar treated the initial assessment as only a very preliminary filtering exercise.

1. Permission to apply for judicial review was granted because the claim was arguable and raised a matter of general interest concerning the correct approach to the Registrar’s role under section 35C(2) of the Medical Act 1983.

2. The Registrar’s function was an initial assessment or screening exercise, and the threshold was low. However, describing it as a very preliminary filtering role might indicate that the threshold had been set too low. That possible misdirection raised an arguable error of law.

3. The court did not accept that the claim was necessarily academic merely because the case examiners had closed the cases. The fact of referral was said to have potentially continuing professional and practical consequences. It was therefore arguable that the referrals themselves could properly be challenged.

4. The merits of the referrals remained relevant. The court would have to consider whether each complaint appeared to raise a question whether the practitioner’s fitness to practise was impaired on grounds of misconduct under section 35C(2). The complaints had to be considered separately.

5. The renewed application was not refused solely for delay. Permission was granted on grounds 1 and 4, while grounds 2, 6 and 7 were struck out. Grounds 3 and 5 were left to be advanced as part of the substantive case, including insofar as they supported the permitted grounds. The court made no final determination on the legality or rationality of the referrals.

1. High Court (Administrative Court): Permission had been refused on the papers by McCombe J on 21 January 2008. On renewal, permission was granted in part by the Deputy High Court Judge.