Pal, R (on the application of) v The General Medical Council

At the GMC’s initial screening stage, the Registrar must decide whether an allegation, if established, is capable of supporting a finding that fitness to practise is impaired. The Registrar is not required to determine the facts or conduct an extensive investigation. Inquiries may be necessary to clarify an obscure allegation or to verify a straightforward, readily ascertainable matter. A referral to Case Examiners will rarely be amenable to judicial review, because the matter must first pass through a protective screening process before a full hearing. A complaint rejected before any substantive hearing should not ordinarily have to be disclosed in response to employment questions about fitness to practise proceedings.

The claimant sought judicial review of a Deputy Registrar’s decision to refer two complaints to GMC Case Examiners under the fitness-to-practise procedure. The allegations concerned her use of the description psychiatrist and her publication of material from private British Psychological Society proceedings.

The Case Examiners later rejected both allegations and took no further action. The claimant nevertheless argued that the referral was unlawful, that the Registrar had failed to make sufficient inquiries, and that notification of the investigation caused continuing professional prejudice. The central issue was the proper scope of the Registrar’s function under the Medical Act 1983 and the 2004 Rules.

1. The claim was dismissed. The court refused relief against the referral because the Case Examiners had rejected both allegations and the claimant had not shown that the Registrar acted unlawfully.
2. Under rule 4 of the 2004 Rules, read with section 35C(2) of the Medical Act 1983, the Registrar’s task is to consider whether the allegation, if proved, is capable of supporting a finding of impaired fitness to practise. The Registrar does not decide whether impairment is established and ordinarily does not investigate whether the facts are likely to be proved.
3. The power to investigate under rule 4(4) does not impose a general duty to conduct extensive inquiries. The Registrar may need to clarify an obscure allegation or make a simple inquiry which can readily verify a decisive fact. Whether failure to inquire is unlawful depends on the circumstances of the individual case.
4. The BPS allegation was properly referred. The Registrar had confirmed that the material was confidential and that permission to disclose it had not been given. Its publication was capable of raising a question of misconduct, notwithstanding that the material had previously appeared on a United States website and did not concern patient confidentiality. Regulation of medical professionals in those circumstances was proportionate for the purposes of article 10 of the Convention.
5. The psychiatrist allegation was borderline. The Registrar’s limited check of the specialist register was sufficient for the screening stage, and it was not necessary to decide whether the allegation alone should have been rejected.
6. The approach under the former 1988 Rules, discussed in R v General Medical Council, ex parte Toth [2000] 1 WLR 2209, required qualification because the 2004 Rules give the Registrar a judgmental role, including powers concerning investigations and out-of-time allegations.
7. Judicial review of a referral to Case Examiners would be appropriate only exceptionally. The notification obligation under section 35B does not ordinarily justify intervention at that preliminary stage, particularly where a reasonable employer should not act adversely on an allegation that has not proceeded to a hearing. The defendant received an order for costs on the usual legal-aid terms.

not stated in the judgment.