FCA as gatekeeper of UK crypto AML regime: two years in
Receiving a letter advising that a complaint has been made to your regulator can be a daunting event. It is therefore important that you seek early advice so that you can be guided through the process by which the complaint will be considered and investigated. The case summary below illustrates this point.
R (on the application of Rudling) v General Medical Council  EWHC 3582 (Admin)
Patient A died of Addison's disease in December 2012. In accordance with due process, following referral, the GMC's Registrar referred the case for consideration by Case Examiners. A Rule 7 letter was sent to the claimant on 17 June 2013 giving details of the allegation. In general terms, they concerned: (i) the claimant’s clinical competence when Patient A and his mother consulted with her on two dates in November 2012; and (ii) record-keeping in relation to a telephone discussion with Patient A's mother in December 2012.
The GMC alleged that the claimant had: (i) failed to review Patient A's medical records at the time of the telephone discussion; (ii) failed to make a contemporary and adequate record of the discussion; and (iii) recorded the discussion after the fact without making it clear on the face of the record that it was a retrospective entry.
Through solicitors, the claimant responded to the Rule 7 letter in July 2013. As to the telephone call with Patient A’s mother, the claimant accepted that it had not taken place on the same day she made the record and that she had not consulted the patient’s medical records at the time of the conversation. She explained that she was in the reception area when she took the call. Further, she had not recorded the call promptly due to external factors, including building works taking place over the weekend. The claimant, whilst contrite, stated that the concerns related to a single patient in an otherwise unblemished career and further that the matters at hand were not serious enough to meet the threshold for misconduct.
On 2 August 2013, the Registrar wrote to the claimant to inform her that the Case Examiners had reached the interim view that the case could be concluded with a warning. The claimant was invited to submit any final comments before a decision was made.
On 27 August 2013, through solicitors, the claimant responded advising that she was not prepared to accept a warning as it would not be appropriate or proportionate. Thereafter, the case was referred to the IC for a hearing on the basis that the Case Examiners view was that the claimant's conduct represented a 'significant departure from the standards to be expected of a professional doctor such that public confidence in the profession might be undermined if the GMC took no action'.
The IC was initially scheduled for 7 November 2013, but was adjourned pending the outcome of a police investigation which led to criminal charges against the claimant (the matters also related to Patient A’s case). The claimant was acquitted of gross negligence manslaughter after the judge found that there was no case to answer and the Prosecution offered no evidence on a charge of attempting to pervert the course of justice (the record keeping issue). The criminal proceedings concluded on 24 June 2016.
In the course of the investigation, the police obtained evidence from an IT expert. The expert told the police that the claimant was logged into the electronic records system and had updated a patient's records for ten minutes on 7 December 2012, after the time of the telephone call with Patient A's mother. This called into question the claimant’s response as to why she had not updated Patient A’s records. The expert also stated that there was no record of the claimant having reviewed a summary of Patient A's telephone consultation with another GP earlier on 7 December, as she had claimed she did in her interview with the police and her response at Rule 7 stage.
In June 2017, the GMC wrote to the claimant advising her of the new IC date and also advising that the IC would be asked to consider the ‘new information that has been collected since the original referral’ and further that the GMC would be submitting that the case warranted a referral to the Medical Practitioners Tribunal Service (MPTS) for a hearing.
The updated draft particulars of the allegation were different to those previously sent to the claimant; materially they questioned her probity. Through new solicitors, the claimant responded raising concerns regarding the newly drafted allegation, specifically that she had not had an opportunity to respond to the new matters and they had not been considered by the Case Examiners. The GMC rejected the representations and the IC proceeded. The IC allowed the additional material pursuant to its powers under Rule 34(1) – the claimant then indicated that she wished to apply for judicial review, and the IC adjourned its consideration.
The claim form was filed on 12 September 2017. Permission to apply for judicial review was refused on the papers, but granted by Moulder J following a hearing. In short, the claimant submitted that the IC’s decision to admit new material circumvented the statutory protections afforded by Rules 7 and 8. Further, the issues as to probity could not rationally be considered as supplementing the GMC’s existing case, but rather should be considered as a new and different allegation.
The GMC accepted that the newly drafted particulars had not undergone the Rule 7 process and that there had been no decision by the Case Examiners under Rule 8. Notwithstanding, the GMC stated that the issues as to probity were: ‘not an entirely new allegation. The particulars relate to the same matter which the [Investigation Committee] were originally asked to consider in November 2013’. Further that the statutory provisions clearly contemplate the GMC having an on-going duty to investigate and review fitness to practise matters in the public interest.
Both parties agreed that there was no direct authority on the points of statutory interpretation arising in the case. As such, Mrs Justice Farbey DBE approached the interpretation of the Rules in a purposive way, taking the public interest, not fairness to the claimant, as the primary gauge by which to measure her conclusions.
At paragraphs 45 to 46 she stated as follows:
‘In my judgment, the mandatory language of Rule 7(1) does not imply that a properly constituted GMC Committee should treat an allegation as frozen in time. Detailed provisions for further investigation and further evidence are made at each stage of the regulatory process…..Despite these opportunities for new facts and matters to emerge at each stage, the Rules are silent as to the need to refer new material to Case Examiners. Had that been the Rules' intention, it would have been stated.
Nor do I accept that a practitioner in the claimant's position would stand to suffer procedural unfairness from the GMC's submission of new material to the Investigation Committee. In relation to a matter as serious as probity, the practitioner has the right to know the full extent of the allegation made against him or her ….However the claimant knows and has been provided with a detailed account of what is alleged …. She has been provided with the evidence on which the GMC relies. She has had, and will have at the resumed hearing, the right to attend and be represented by Counsel… She is entitled to submit any written representations or other documents that she wishes to provide…. All these procedural safeguards are founded on the Rules and ensure adequate protections for practitioners’.
The claim was dismissed.
Clearly, each case will turn on its individual facts. In the present case, the courts accepted that the new allegations related to the same underlying case, and therefore were all part of the same factual matrix. Further, as the claimant had been sent a newly drafted allegation with the evidence upon which it was based and would have an opportunity to respond to that allegation, there was no procedural unfairness despite the Case Examiners not having had the opportunity to consider the new material. Another factor which clearly influenced the court’s decision was the underlying need for the expeditious and efficient disposal of regulatory proceedings, which is not only in the public interest, but is also part of the objective of the Rules.
Skip to content Home About Us Insights Services Contact Accessibility