General Medical Council v Zia

The General Medical Council (Fitness to Practice) Rules Order of Council 2004 creates a fair framework whose primary function is to protect public health and safety. The Registrar may, under rule 4(4), obtain a performance assessment under rule 7(3) before deciding whether to refer an allegation to case examiners. Rule 7(3) is not confined to the period after such a referral.

If a practitioner refuses to submit to a properly directed assessment, rule 7(6) permits direct referral to a Fitness to Practise Panel. That route lawfully bypasses case examiners. Fairness remains protected by disclosure during assessment and adequate notice of the allegations.

The General Medical Council appealed from the decision of HHJ Gilbart QC, sitting in the Administrative Court, which had quashed a Fitness to Practise Panel's direction suspending Dr Zia for eight months.

Following allegations of deficient clinical performance, the Registrar directed a performance assessment under the General Medical Council (Fitness to Practice) Rules Order of Council 2004. Dr Zia refused to participate. The Registrar then referred the allegation directly to the Fitness to Practise Panel under rule 7(6). The Panel found a number of charges proved and imposed suspension.

The High Court held that the Registrar had impermissibly bypassed consideration by case examiners. The central issue on appeal was whether rule 7(3) permitted a performance assessment before referral to case examiners, and whether refusal of that assessment permitted direct referral to the Panel.

1. Appeal allowed unanimously. The High Court's order quashing the Panel's direction was set aside. The eight-month suspension was reinstated, and the matter was remitted to the Administrative Court to determine Dr Zia's remaining grounds of appeal.

2. The correct starting point for construing the Rules was the main objective in section 1(1A) of the Medical Act 1983: protection, promotion and maintenance of public health and safety. The Rules also require fairness to the practitioner, but they do not create an inflexible entitlement to consideration by case examiners before every further step.

3. Rule 4(4) authorised the Registrar to conduct appropriate investigations before deciding whether to make a rule 4(2) referral. A performance assessment under rule 7(3) was one such investigation. Rules 10(6), 11(7)(d), 13 and 13A supported that construction. The fact that rules 7(1) and 7(2) operate after referral to case examiners did not impose the same temporal restriction on rule 7(3).

4. Once Dr Zia declined to submit to the properly directed assessment, rule 7(6) permitted direct referral to the Fitness to Practise Panel. That consequence was logical because case examiners could otherwise be unable, or seriously hampered, in deciding the case on adequate information. The direct referral therefore lawfully bypassed case examiners.

5. There was no abuse of process or unfairness. Schedule 1 required disclosure of material capable of influencing the assessment and an opportunity to respond. Dr Zia also received the Trust's material and a detailed written statement of the charges before the Panel hearing.

• Court of Appeal (Civil Division) Allowed the General Medical Council's appeal, set aside the High Court's quashing order, reinstated the eight-month suspension, and remitted the remaining grounds. [2011] EWCA Civ 743
• High Court, Queen's Bench Division, Administrative Court HHJ Gilbart QC allowed Dr Zia's appeal on a preliminary issue and quashed the Fitness to Practise Panel's direction. No citation was stated in the judgment.
• Fitness to Practise Panel Found a number of charges proved and directed that Dr Zia be suspended for eight months.