Acting to stop harm: the FCA and Appointed Representatives
Is reliance on third party interviews in competency cases unfair?
Sulaiman v General Medical Council was an appeal by the registrant, an orthopaedic consultant, to the High Court against a decision of the General Medical Council (“GMC”) that his fitness to practise was impaired and that, as a result, his registration should be subject to conditions for a period of 12 months.
The appellant was employed by the Dudley Group of Hospitals NHS Trust. Following concerns about the appellant’s competence (including four of the appellant’s orthopaedic colleagues writing to the GMC to express their concerns), the appellant was invited to undergo a GMC assessment of professional performance.
One aspect of Mr Sulaiman’s assessment was a peer review which consisted, in part, of third party interviews. These interviews were conducted with the four orthopaedic practitioners who had initially complained about the appellant to the GMC, along with two nursing sisters selected at random. The comments made by Mr Sulaiman’s four colleagues were balanced in their criticism and praise. However, the appellant alleged that this “balancing” exercise demonstrated a deliberate mala fides so that the interviewee’s negative answers would be given more weight. The appellant further alleged that there was a history of ‘bad blood’ between them, and that the GMC had not taken that factor into account when reaching their initial decision.
In the interests of fairness, the GMC presented the appellant with notes of the third party interviews and offered him the opportunity to comment on them. Further, the GMC offered the opportunity for the appellant to call any of his own witnesses to counter these allegations. This offer was not taken up by the appellant.
In delivering her judgment, Nicola Davies J held that there was insufficient basis upon which to form any criticism of the GMC in reaching their decision. The learned Judge found that the GMC had taken active steps to negate any bias in their decision making process by offering the appellant the right to respond to criticisms and call further witnesses.
This case emphases the importance of Regulators giving their registrant members every opportunity to respond to criticisms, especially in competency cases. By doing so, they can not only safeguard against appeals by registrants; but also ensure that the procedural fairness is maintained throughout their dealings with registrants.
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