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

A professional regulator is not required to align its guidance with a prosecutor’s policy on assisted suicide. A prosecutorial policy does not alter the criminal law, and a regulator may require doctors to obey it while preserving discretion to assess each alleged breach on its facts. Where a statutory prohibition on assisting suicide is compatible with article 8, guidance reflecting that prohibition is likewise capable of justification. Article 10 adds nothing where the alleged interference with receiving information has the same justification. A court should accord substantial weight to the specialist regulator’s assessment of the public interest, particularly where the claimant seeks to compel a particular form of guidance.

The claimant, who had locked-in syndrome and a settled wish to end his life, sought medical reports and advice about methods of suicide, including assistance connected with travel to Dignitas. He challenged guidance issued by the General Medical Council concerning doctors who encourage or assist suicide.

He argued that the guidance disproportionately interfered with rights under articles 8 and 10 of the Convention and was irrational in domestic law because it was more restrictive than the Director of Public Prosecutions’ policy. The central issues were whether the GMC had to adopt the DPP’s approach and whether its guidance was unlawful or irrational.

1. Application dismissed. The GMC’s guidance was compatible with article 8.
2. The Supreme Court’s decision in R (Nicklinson) v Ministry of Justice [2014] UKSC 38 established that section 2(1) of the Suicide Act 1961 was compatible with article 8 even as a blanket prohibition. Its compatibility did not depend on the existence or exercise of the DPP’s prosecutorial discretion.
3. The DPP’s clarified policy did not create a Convention requirement for the GMC to provide equivalent reassurance. The GMC could lawfully take as its starting point that doctors must obey the law. Article 10 did not alter the result.
4. Under sections 1(1A) and 35 of the Medical Act 1983, the GMC had broad discretion to formulate guidance. Criminal prosecution and professional regulation pursue different objectives, so the DPP’s public-interest assessment did not dictate the GMC’s guidance.
5. The guidance was not strictly binding, and each case depended on its circumstances. The court could not require the GMC to promise that particular unlawful conduct would not lead to fitness-to-practise proceedings, since that could unlawfully fetter its discretion.
6. The Wednesbury challenge failed. It was for the GMC to assess what the public interest required, and this was not a very exceptional case warranting intervention.

The judgment records related proceedings concerning the DPP’s policy and the compatibility of section 2(1) of the Suicide Act 1961. The Court of Appeal found the DPP’s policy insufficiently clear, but the Supreme Court reversed that conclusion and held by a majority that section 2(1) was compatible with article 8. Those proceedings informed, but did not determine, the present challenge to GMC guidance.