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

At the initial fitness-to-practise stage, the question is whether the allegation, if proved, is capable of supporting a finding of impaired fitness to practise. Misconduct may arise from managerial or administrative conduct where it forms part of a doctor’s medical calling and is sufficiently serious. A senior doctor is not professionally responsible for addressing every clinical concern communicated to him, particularly where established NHS systems and other office-holders have responsibility for the matter. A decision about whether an issue falls within a manager’s sphere of responsibility is ordinarily managerial rather than clinical. Discourtesy or an ill-judged failure to respond, without more, is not misconduct. A procedural imperfection at the initial stage may be cured by a proper review under rule 12.

Dr Sheila Adam sought judicial review of the General Medical Council’s decisions not to refer her complaint about Professor Sir Bruce Keogh for investigation. The complaint concerned his failure to respond substantively to concerns about the treatment of a patient with Kawasaki disease and the NHS response to those concerns.

The GMC rejected the allegation at the rule 4 stage and upheld that decision on a rule 12 review. The central issues were whether an internal intervention in the triage process was unlawful and whether Sir Bruce’s role as Medical Director of NHS England was so remote from clinical care that his alleged failure to act was incapable of amounting to misconduct or deficient professional performance.

1. Outcome. Permission to pursue the judicial review claim was refused. The rule 4 and rule 12 decisions were lawful.
2. Rule 4 threshold. Under section 35C of the Medical Act 1983, the initial decision-maker had to consider whether the allegation, if established, was capable of supporting impaired fitness to practise. Rule 4(4) permitted the Registrar to make appropriate investigations before deciding whether to refer the allegation. The Assistant Registrar was entitled to obtain advice from Mr Swain. The advice did not transfer the decision-making function to him, and the Assistant Registrar remained entitled to accept or reject it.
3. Professional responsibility. The principles set out in R (OAO Remedy UK Ltd) v GMC [2010] EWHC 1245 (Admin) recognised that misconduct can arise from administrative or managerial functions forming part of a doctor’s medical calling. That did not mean that a senior medical manager was responsible for resolving every clinical problem communicated to him. The evidence did not establish that Sir Bruce had responsibility for the patient’s care, the hospital’s complaints process, or the development of the relevant clinical pathway.
4. Application. Sir Bruce’s decision about whether the matter fell within his sphere of responsibility was managerial, not a clinical decision arising from responsibility for a patient or group of patients. The possibility that wider lessons could be learned did not impose a professional obligation on him to intervene personally. Dr Adam could not impose such an obligation by sending emails. It might have been preferable for Sir Bruce to respond personally and explain his position, but discourtesy at that level was incapable of amounting to misconduct.
5. Review. The rule 12 decision addressed whether the original decision was materially flawed or whether new information warranted a fresh decision. The Assistant Registrar was entitled to conclude that the merits decision was correct. Any procedural defect at rule 4 would in any event have been capable of being cured by a proper rule 12 review.

The judgment does not state any prior appellate decision. Stewart J had refused permission on 1 April 2015, but the claim was renewed before Mr Justice Edis as a rolled-up hearing.