Can one regulator investigate conduct associated with a Registrant’s other profession?

Ogunsanya and another v General Medical Council [2020] EWHC 1500 (QB)

8 July 2020

In this case the High Court considered the issue of whether the General Medical Council (GMC) could investigate the conduct of a doctor even though the conduct related to the Registrant’s work in his role as a solicitor.
 

Dr Ogunsanya is both a practising doctor and solicitor. At the material time, he was a partner in a law firm as well as a part-time GP. As a doctor, he was regulated by the GMC and as a solicitor, by the Solicitors Regulation Authority (SRA).

In 2018 and 2019, Dr Ogunsanya through his law firm, advised and acted for two doctors in relation to an attempt by NHS England to terminate its contract with their GP practice and in respect of a decision by the Care Quality Commission (CQC) to suspend the practice’s registration. In the course of the appeal hearing against the CQC decision, it came to light that Dr Ogunsanya, in his capacity as a solicitor, had made certain representations to his clients regarding caretaker doctors being in place. The First Tier Tribunal determined that Dr Ogunsanya’s client’s evidence was untrue, preferring the caretaker doctor’s evidence – the caretaker doctor denied that such conversations with Dr Ogunsanya had taken place. Following this, NHS England wrote to the GMC raising concerns about Dr Ogunsanya’s fitness to practise. The GMC then opened an investigation into Dr Ogunsanya.

The GMC’s power to investigate misconduct

The GMC’s power to regulate the medical profession and investigate concerns is derived from the Medical Act 1983. Where an allegation is made about a doctor, section 35C provides that a doctor’s fitness to practise may be considered to be impaired by reason of misconduct.

There is a body of a case law which provides that misconduct in this context does not just concern clinical matters, but extends to conduct described as “morally culpable”, occurring  both in and outside of professional practice and which risks damaging the reputation of the profession.

The basis of the GMC Investigation

The GMC wrote to Dr Ogunsanya informing him that they were proceeding to investigate him; initially indicating it would be investigating 5 allegations against Dr Ogunsanya. However, by the time of the hearing, the GMC had dropped 3 of the 5 allegations and the concerns which remained outstanding were twofold:

  1. Dr Ogunsanya had allegedly stated that he had spoken to a former caretaker doctor and they had agreed to provide cover, but the caretaker doctor denied this; and
  2. Dr Ogunsanya was rude and spoke with a raised tone and sent a number of forceful emails to NHS England staff.

Dr Ogunsanya issued proceedings in the High Court seeking a declaration that the GMC had no power to investigate him pursuant to the Medical Act 1983, in circumstances where he was acting in his capacity as a solicitor, not as a doctor. As a side note, he also sought additional declarations that the GMC’s conduct amounted to unlawful interference in his law firm’s trade. This allowed him to issue a private law claim as opposed to having to seek judicial review.

Dr Ogunsanya’s arguments

Dr Ogunsanya argued that the GMC was not entitled to investigate his conduct whilst acting as a solicitor as:

  • Matters were covered by Legal Professional Privilege (this protects the confidentiality of communications between a solicitor and their client in certain circumstances);
  • The SRA is the appropriate regulatory body to investigate the conduct of solicitors; and
  • The conduct of a solicitor advising or representing a client could not bring the medical profession into disrepute.

The GMC’s counter position

The GMC argued that:

  • Its power to investigate is not determined by reference to the professional or personal context of the conduct alleged, but by the application of section 35C of the Medical Act; the Registrar is required to assess whether the alleged conduct is misconduct that could impair the doctor's fitness to practise. This section of the Medical Act does not limit the GMC’s powers to conduct in particular contexts;
  • Its regulatory enforcement functions cannot be limited to the capacity in which a person operates rather than the nature of the conduct in question; and
  • A registrant’s conduct must be assessed against the overarching objective of securing public protection, including the maintenance of public confidence in the medical profession and upholding proper standards of conduct for members of that profession and this can be extended to conduct outside clinical practice.

The High Court agreed with the GMC and ruled that the GMC did have the power to investigate Dr Ogunsanya under Section 35C of the Medical 1983 Act - the impairment was not limited to conduct in a specific capacity. The Court found that whilst misconduct must maintain a link to the profession of medicine, the conduct may occur outside of medical practice if that conduct would damage trust in, or the reputation of, the profession.

The Court also found that although there may be an overlap with another regulatory regime and this may mean that an individual may face investigations by two regulators in relation to the same matter, this did not preclude the GMC from investigating. The Court did however note that the impact of Legal Professional Privilege may require consideration further down the line; but that this would be an issue for Dr Ogunsanya to raise in his responses to the GMC.

The Court’s ruling

The Court found that in respect of both factual allegations, the issue for the GMC at the initial stages of an investigation was merely whether they were capable of producing a finding of misconduct. In respect of the first matter alleged, the Court found that this was capable of producing a finding of misconduct, noting that this raised issues of dishonesty. However, in respect of the second allegation regarding Dr Ogunsanya’s tone and emails, the Court found that the GMC was not entitled to investigate this as it related to Dr Ogunsanya’s conduct as a solicitor engaged in litigation and provided no link with his fitness to practise as a medical professional.

For those who are dual regulated, this case serves as a warning that alleged misconduct in one professional sphere may be considered by the body regulating the other. It will be interesting to see what the GMC Case Examiners make of any Legal Professional Privilege argument that is raised when the investigation restarts.

Further information

For further information on issues raised in this blog post, please contact a member of our Regulatory team in confidence.

 

About the authors

Sophie Mass is a trainee solicitor in the Regulatory TeamShe studied Spanish and Portuguese at university, for which she spent a year studying at the Federal University of Paraiba in Brazil. She subsequently  completed the Graduate Diploma in Law (GDL) and the Legal Practice Course (LPC), gaining a distinction in both. Prior to joining Kingsley Napley in September 2018, Sophie worked as a paralegal in contentious trusts and probate, commercial litigation and employment. Sophie also worked in the legal sector in Australia for 18 months. 

Julie Norris is a partner in the Regulatory Team. She specialises in advising in the health, professional services, legal and financial fields, advising professionals, businesses and regulators on regulatory compliance, investigations, adjudication, enforcement and prosecutions.

 

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