Ogunsanya & Anor v General Medical Council

The GMC’s jurisdiction under Medical Act 1983, section 35C, is not confined to conduct undertaken in a doctor’s medical capacity. Conduct undertaken while acting as a solicitor may fall within the jurisdiction if it retains a link with medicine or could prejudice public confidence in the medical profession.

At the initial Rule 4 stage, the question is whether the allegation is capable of producing a finding of misconduct. The Registrar need not determine whether the facts are established, although reasonable inquiries may be required to clarify an obscure allegation. A dual-registered professional may be investigated by more than one regulator, subject to later consideration of legal professional privilege and fairness.

The first claimant was both a registered medical practitioner and a solicitor advocate. The GMC decided to investigate information supplied by NHS England concerning his conduct while representing doctors in proceedings involving their GP practice.

The claimants sought declarations that the GMC lacked power to investigate conduct undertaken as a solicitor, including matters potentially covered by legal professional privilege. They also sought to continue a private-law claim alleging unlawful interference with their business. The remaining allegations concerned an alleged misstatement about caretaker cover and the claimant’s allegedly rude or forceful communications.

The issues were whether the Part 8 claim was an abuse of process, whether the GMC had jurisdiction to investigate the allegations, and whether the unlawful-interference claim had an arguable basis.

1. Procedure. Although a challenge to the GMC’s Rule 4 decision would normally be brought by judicial review, the claim also contained a private-law complaint and sought declaratory and injunctive relief. In the circumstances, pursuing it under CPR Part 8 was not an abuse of process.
2. Dual registration and jurisdiction. The touchstone was section 35C of the Medical Act 1983, which did not confine impairment to conduct undertaken in a particular capacity. Misconduct could occur outside medical practice if it was linked to medicine and could bring disgrace on the doctor or prejudice the reputation of the medical profession. Concurrent jurisdiction with another regulator did not oust the GMC’s jurisdiction.
3. Initial investigation threshold. At the Rule 4 stage, the Registrar had to ask whether the allegation was capable of producing a finding of misconduct. The Registrar was not deciding whether the facts were proved. If the threshold was met, referral to Case Examiners was mandatory. Legal professional privilege and possible unfairness could be considered at later stages.
4. Allegation 1. The allegation that the claimant dishonestly told Dr Agoe that a former caretaker had agreed to continue providing cover was capable, at its highest, of raising a probity issue and of suggesting conduct connected with the continuation of practice during a suspension. The declaration challenging the investigation of this allegation was dismissed.
5. Allegation 5. The allegation that the claimant was rude, used a raised tone and sent forceful emails was opaque and arose from communications made as solicitor for clients in litigation. The GMC had identified no proper link with medical fitness to practise and could not simply assume the obscure allegation could support misconduct. The declaration succeeded in relation to this allegation.
6. Unlawful interference. The claimants demonstrated an arguable basis for their private-law claim, including an arguable issue concerning the IOT’s application of the GMC’s own representation guidance. That claim was directed to continue under CPR Part 7.

First-instance decision. No prior appellate decision is stated in the judgment.