Zia v General Medical Council

The General Medical Council’s Fitness to Practise Rules require the Registrar, after initial screening, to refer an allegation within section 35C(2) of the Medical Act 1983 to the case examiners. The Registrar may investigate and direct a performance assessment, but that power supports the case-examiner process; it does not permit bypassing it. A refusal to undergo assessment may justify a direct referral to a Fitness to Practise Panel under Rule 7(6), but it does not remove the mandatory Rule 4(2) safeguards. A referral made in breach of those requirements is unlawful and deprives the panel of jurisdiction where the breach may have caused prejudice. On appeal under section 40, the High Court may quash the panel’s decision. The allegations remain extant and must proceed through the lawful investigative process.

Dr Ahmad Zia appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision finding misconduct and deficient professional performance and imposing an eight-month suspension. The allegations included failure to disclose a GMC investigation to a prospective employer and deficient treatment of two patients.

The Registrar had directed a performance assessment under Schedule 1 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004. Dr Zia declined to attend. The Registrar then referred the matter directly to the Fitness to Practise Panel under Rule 7(6), without referral to the case examiners. The central issue was whether that procedure was lawful and, if not, whether the panel’s decision was valid.

1. Appeal allowed. The Registrar acted unlawfully by referring the allegations directly to the Fitness to Practise Panel without first referring them to the case examiners under Rule 4(2).
2. The Rules form a protective and comprehensive code. Once the Registrar has considered an allegation and it falls within section 35C(2) of the Medical Act 1983, the Registrar has no discretion to avoid referral to the case examiners. Rule 4(4) permits preliminary investigation, but does not authorise the Registrar to determine whether referral should occur.
3. Rule 7(3), permitting a performance assessment under Schedule 1, is intended to obtain evidence for consideration by the case examiners or the Investigation Committee. It does not operate independently of that process. The assessment report concerns matters relevant to the case examiners’ powers to terminate the case, issue a warning, invite undertakings or refer the matter onwards.
4. Rule 7(6) prevents a practitioner from frustrating an assessment by refusal. It permits the Registrar to refer the allegation to a Fitness to Practise Panel where the practitioner fails to submit to assessment. It does not disapply the mandatory Rule 4(2) referral where the allegation has otherwise passed the initial screening stage.
5. The breach deprived Dr Zia of important safeguards, including notice and an opportunity to make representations, and deprived the Fitness to Practise Panel of the case examiners’ decision and reasons. The breach was sufficiently serious to undermine the investigative process, and the court could not conclude that it had caused no prejudice. The panel therefore acted without jurisdiction.
6. The court declined to follow Dzikowski v GMC and Kashyap v GMC as persuasive authorities on the availability of an appeal under section 40 for jurisdictional procedural defects. Neither decision addressed the Registrar’s power to bypass the investigation required by the Rules.
7. The court quashed the direction appealed against. The allegations remained extant and the GMC was required to follow the procedure that should have been followed in 2008. The judge’s observation that it would be surprising if certain allegations were continued was expressly obiter. Permission to appeal was granted.

The appeal was brought under section 40 of the Medical Act 1983 from the decision of a GMC Fitness to Practise Panel. The Panel had imposed an eight-month suspension. The High Court allowed the appeal and quashed the direction.