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

Under rule 5(2) of the General Medical Council (Fitness to Practise) Rules 2004, referral of a non-custodial criminal conviction directly to a Medical Practitioners Tribunal is the default position. The Registrar need only decide whether the case should instead be referred to Case Examiners. A previous warning concerning the same facts does not displace that presumption. Under rule 12, a decision may be reviewed where genuinely new information may have led to a different outcome and review is necessary for public protection, prevention of injustice or the public interest. A challenge may be refused where it is academic and, in any event, irrationality is not established. The absence of an express duty to give reasons for a rule 5(2) referral is significant, particularly where the default course is adopted.

The claimant, a consultant surgeon, had received a GMC warning concerning the marking of transplanted livers during surgery. He was later convicted, on guilty pleas, of two offences of common assault arising from the same incidents.

The GMC reviewed the warning under rule 12, referred the original misconduct allegation back to the Case Examiners, and separately referred the convictions allegation directly to a Medical Practitioners Tribunal under rule 5(2). The claimant sought judicial review of all three decisions, arguing principally that the convictions should have been considered by the Case Examiners against the background of the existing warning and that the decision-making sequence and reasons were legally flawed.

1. Outcome. The claim for judicial review was dismissed. The challenges to all three GMC decisions failed.
2. The challenges to the first two decisions were academic. In fact, the rule 5(2) referral occurred before the Case Examiners finally dealt with the misconduct allegation, and the warning was removed and not restored. There was no practical benefit in quashing the review decisions.
3. The criminal convictions were new information for rule 12 purposes. They involved unequivocal guilty pleas and introduced a distinct statutory ground of possible impairment under section 35C(2)(c) of the Medical Act 1983. It was rational to conclude that the convictions might, or probably would, have led to a different decision because the Case Examiners had not previously known whether the conduct constituted criminal offences or whether the claimant would admit them.
4. The rule 12(3) necessity requirements were rationally satisfied. The convictions created a legitimate public-confidence concern, and review could avoid inconsistent or overlapping sanctions. The reference to preventing a risk of injustice did not involve applying the wrong test.
5. Rule 5(2) establishes a presumption that a non-custodial conviction is referred directly to the Medical Practitioners Tribunal. The only issue for the Registrar is whether the allegation ought instead to be referred to Case Examiners under rule 8. A previous warning arising from the same facts did not require departure from that default position, particularly where the published guidance treated the exception as directed mainly to minor offences and offences outside professional practice.
6. The standard-form letter suggesting that Case Examiners would consider the convictions did not create a legitimate expectation of referral under rule 8. The Registrar had not yet determined the applicable course, and the claimant was aware of both available routes.
7. There was no procedural unfairness, unlawful fettering of discretion or irrationality. Rule 5(2) conferred no entitlement to make written representations before direct referral. Nor was there an express duty to give reasons for adopting the default referral route. The short reasons, read with the letter, sufficiently showed consideration of rule 5(2) and fairness to the claimant.