Rudling, R (On the Application Of) v General Medical Council

The GMC’s regulatory process is not frozen when an allegation has been referred to an Investigation Committee. Later evidence may expand the particulars of an existing allegation without requiring a fresh rule 7 process, provided the matters remain within the existing allegation. The Rules must be construed purposively, with protection of the public as the primary objective, while preserving adequate procedural safeguards for the practitioner. Whether later matters constitute an amendment or a new allegation depends on the substance and connection between them. Matters concerning the same patient, record-keeping and course of conduct may properly be treated as an expansion of the existing allegation.

The claimant, a general practitioner, challenged a decision of the GMC’s Investigation Committee to admit new evidence concerning her probity. The original allegation concerned her clinical care of a patient and the making of a retrospective medical record. After police investigations and criminal proceedings, the GMC sought to rely on evidence suggesting dishonesty in relation to the record and statements made to police.

The claimant argued that the probity matters were a new allegation and that the GMC had to comply again with rules 7 and 8 of the GMC (Fitness to Practise) Rules 2004. The central issue was whether the Investigation Committee had jurisdiction to consider the new material without restarting the Case Examiners’ procedure.

1. The application was dismissed. The Investigation Committee had jurisdiction to admit and consider the new probity material.
2. The Rules must be interpreted purposively. The GMC’s over-arching objective under the Medical Act 1983 is the protection of the public. Fairness to the practitioner remains important, but it is not the primary yardstick for construing the regulatory scheme. The approach in Zia v General Medical Council [2011] EWCA Civ 743; [2012] 1 WLR 504 was applied.
3. Rule 7(1)’s mandatory language did not require an allegation to be treated as frozen in time. The Rules contemplate further investigations and the emergence of new evidence at successive stages. They contain no requirement that every new matter must be referred back to Case Examiners for a second rule 7 process.
4. The Rules provided adequate safeguards. The claimant knew the substance of the probity allegations, had the evidence relied on by the GMC, could attend and be represented at the hearing, and could submit written representations and other documents. The principle that a practitioner must know the full extent of a serious allegation was recognised by reference to Professional Standards Authority for Health and Social Care v The Nursing and Midwifery Council and David Andrew Dalton [2016] EWHC 1983 (Admin).
5. The Rules necessarily contained at least an implied power to amend an allegation after the rule 7 process. The notification provisions in rules 11, 15 and 17 would otherwise be otiose. Consistently with R (Ireland and another) v Health and Care Professional Council [2015] EWHC 846 (Admin), the probity matters could be treated as an expansion of the existing allegation.
6. On the facts, the probity matters concerned the same patient, the same record-keeping and the same course of conduct between 7 and 10 December 2012. They therefore amended the existing allegation rather than creating a new one. More broadly, allegations separated in time and subject matter could constitute discrete allegations; the Rules permitted joinder of separate allegations.
7. The delay between the criminal proceedings and the GMC’s further notification did not alter the proper construction of the Rules or establish an error of law. The proposed rule 12 route was unavailable because there had been no Case Examiners’ decision not to refer the case to a Tribunal. The rationality challenge was not pursued orally and lacked merit.