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

Private communications are not exempt from professional disciplinary scrutiny. A regulator may refer alleged misconduct to a disciplinary tribunal where the statutory and procedural framework makes the interference with Article 8 rights foreseeable and lawful.

Where there is a realistic prospect of a finding of impaired fitness to practise, the regulator must refer the matter to the tribunal. The court retains responsibility for assessing proportionality, but tribunal safeguards may make referral proportionate. Judicial review of a prosecutorial referral is exceptional where the disciplinary tribunal provides an adequate alternative remedy.

Ten doctors sought permission for judicial review of decisions by General Medical Council case examiners to refer them to the Medical Practitioners Tribunal. The allegations arose from messages and attachments shared in a closed encrypted WhatsApp group. The claimants challenged the referrals on Article 8, public confidence and alleged duty-to-report grounds.

Permission and anonymity had previously been refused on the papers by Saini J, subject to anonymisation pending the renewed application. The central issues were whether referral constituted a further interference with correspondence rights, whether the applicable legal framework was sufficiently foreseeable, whether referral was proportionate and rational, and whether the Medical Practitioners Tribunal provided an adequate alternative remedy.

1. Anonymity. The open justice principle applied. Although the claimants’ correspondence could be protected by preserving confidentiality, blanket anonymity was not strictly necessary. The claimants were therefore to be named.
2. Article 8. The correspondence had already been disclosed to the police, Health Education England and the GMC. Disclosure to the Medical Practitioners Tribunal, which had no separate legal personality from the GMC, did not constitute a further interference. The formulation of disciplinary charges did not, of itself, create a separate interference. The Tribunal could sit in private or adopt other protective measures under Rule 41 of the GMC’s Fitness to Practise Rules 2014.
3. If Article 8 was engaged, the interference was in accordance with the law. The GMC was entitled to rely on the detailed regulatory framework governing disciplinary proceedings and relevant authority, including Remedy UK, R (on the application of) v GMC [2010] EWHC 1245, which recognised that professional misconduct could consist of dishonourable or disgraceful conduct unrelated to clinical practice where it brought the profession into disrepute.
4. The court had to assess proportionality itself and could not simply defer to the specialist decision-makers. Nevertheless, once the case examiners found a realistic prospect that the Tribunal would find impaired fitness to practise, referral was required. The GMC’s statutory objectives included maintaining public confidence and proper professional standards. In light of those objectives and the procedural safeguards available before the Tribunal, referral was proportionate.
5. The public confidence and duty-to-report grounds disclosed no arguable error. The broader concept of public confidence permitted the Tribunal to consider whether the claimants’ conduct and alleged failures to report required further action.
6. Judicial review of prosecutorial decisions was available only in exceptional circumstances. The proceedings before the Medical Practitioners Tribunal provided an adequate alternative remedy, including the opportunity to raise the Article 8 arguments and any complaint about further interference.

The renewed applications for permission were refused.

Saini J refused permission and anonymity on the papers by order dated 24 December 2019, subject to temporary anonymisation pending any renewed application. The Administrative Court heard the renewed applications and refused permission.