Remedy UK Ltd, R (on the application of) v General Medical Council

At the permission stage of judicial review, the court decides only whether the proposed claim is arguable. It does not determine the ultimate merits. A GMC Registrar has a narrow screening function: if an allegation is capable of producing a finding of misconduct or deficient professional performance within section 35C(2) of the Medical Act 1983, it must be referred to case examiners. “Professional” may arguably extend beyond clinical work where conduct has a sufficient link with the practitioner’s professional calling. A misconduct complaint must identify the conduct sufficiently to permit referral and a meaningful response. A protective costs order may be made where the claim is arguable, raises significant public interest and the claimant has no private interest in the outcome.

The claimant, a campaigning organisation, sought permission to judicially review the GMC Registrar’s refusal to refer complaints against two doctors involved in the policy and implementation of the Medical Training Application Service. The Registrar considered that the allegations concerned national policy rather than medical practice, lacked sufficiently specified misconduct, and could not affect the doctors’ fitness to practise.

The claimant argued that “deficient professional performance” was not confined to clinical work and that misconduct need not be material to fitness to practise medicine in the narrow sense. The court also considered the claimant’s application for a protective costs order.

1. Permission granted. The two remaining grounds were arguable. The court stressed that this was a low threshold and did not indicate that the claim would ultimately succeed.
2. The Registrar’s role under section 35C of the Medical Act 1983 and Rule 4 of the Schedule to the General Medical Council (Fitness to Practise) Rules Order of Council 2004/2608 is narrow. The question is whether the allegation is capable of producing a finding of misconduct or deficient professional performance. If it is, the matter must be referred to case examiners.
3. The argument based on Roylance v General Medical Council [2001] 1 AC 311 had some force at the arguability stage. “Professional” was capable of extending beyond clinical or medical practice where the conduct had an appropriate link with the practitioner’s calling. The court did not finally determine that construction.
4. The misconduct complaint identified the relevant professional performance and conduct sufficiently clearly to enable referral and to allow the interested parties to respond without legal embarrassment.
5. A protective costs order of £22,500 was granted. The criteria in R (Cornerhouse Research) v The Secretary of State for Trade and Industry [2005] EWCA Civ 192 were met. No reciprocal order was made for the GMC. The claimant’s costs of the protective costs order application were directed to detailed assessment if not agreed.

First-instance permission decision. The judgment states that an earlier challenge to the introduction of the Medical Training Application Service had been dismissed by Goldring J on 22 May 2007, but gives no citation for that decision.