Rule 12 – when the Assistant Registrar’s decision not to refer an allegation against a doctor is not final

1 April 2021

R (on the application of Young) v General Medical Council [2021] EWHC 534 (Admin)

The material issue in this case was whether an Assistant Registrar of the GMC (“AR2”) was right to decide that allegations should proceed, despite a decision previously made by another Assistant Registrar (“AR1”) that they should not. 

Background facts
In October 1996, a nine-year-old child (C) was admitted to the Royal Belfast Hospital for Sick Children with low blood serum sodium levels. A delay in undertaking repeat blood tests meant that medical staff failed to identify that C’s serum sodium level had fallen to a dangerously low level (hyponatraemia), as a result of which C sadly died.  However, C's parents were not told about the hyponatraemia and were told that the death resulted from a viral infection and encephalitis.

In October 2004, a TV programme was aired which examined the deaths of three other children from hyponatraemia, giving rise to media interest and public disquiet. In November 2004, a public inquiry was launched.

C’s parents saw the programme and, recognising similarities in the cases of the other children, contacted the hospital querying C’s care. C’s notes were reviewed by one of the consultants responsible for C’s treatment at the time, who concluded there may have been a link to hyponatraemia. C’s parents demanded a referral to the Coroner and the public inquiry.

At this stage, the Claimant became involved as Deputy Medical Director at the Belfast Health and Social Care Trust, and Chief Scientific Advisor to the Department of Health (Northern Ireland). The Claimant attended meetings between C’s parents and the hospital’s doctors, as an independent medical expert, and gave evidence at the Coroner’s inquest.

In May 2006, the Coroner held an inquest into C’s death and found cause of death “had been cerebral oedema due to meningo-encephalitis and hyponatraemia due to excess ADH production and status epilepticus.

The public inquiry report published in February 2018 suggested the doctors involved in C's care had attempted a "cover-up" of the cause of her death, and criticised the Claimant for (i) failing to acknowledge failings in C's care during a meeting with her parents in December 2004; (ii) contributing to a letter to C's parents in January 2005, which was "inaccurate, evasive and unreliable"; (iii) failing to draw key issues to the coroner's attention; and (iv) shifting from his initial independent role to one of protecting the hospital and its doctors.

The Claimant self-reported to the GMC a few days after the inquiry report was published. C’s father also submitted a complaint to the GMC in March 2018.

The GMC
AR1 identified two allegations against the doctor:

  1. Contribution to the letter to C’s parents dated 12 January 2005 which included “highly questionable” content; and
  2. Giving misleading evidence to the Coroner’s inquest in May 2006.

The first decision notice by AR1
AR1 decided that allegations against the Claimant should not proceed any further by virtue of rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 (the “2004 rules”), which provides:

“No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest for it to proceed.”

AR1 considered the public interest in investigating allegations (1) and (2) was insufficient to outweigh other considerations so as to justify waiving the 5-year rule.

The second decision by AR2
C’s father exercised the right to review by virtue of Rule 12 of the 2004 rules.

AR2 initially said the review would only be in relation to allegation (2) and not (1), but subsequently decided to extend the review to cover allegation (1) and added a new allegation, which she identified from the inquiry report, but which AR1 had failed to include:

  1. The failure to acknowledge failings in care and/or the provision of misleading/dishonest information to C’s parents at the meeting on 7 December 2004.

Following the second review, AR2 decided there had been material flaws in AR1’s decision and that a fresh decision was necessary in the public interest. The case would be referred to the Case Examiners for consideration.

Application for judicial review
The doctor (Claimant) applied for judicial review of the decision made by AR2, contending that the power to review under rule 12 was not engaged, alternatively, that if it was, the power was exercised unlawfully.

Held: (Mr Justice Holgate)
Application refused.

Three grounds of challenge were submitted by the Claimant, and all three were rejected.

Ground 1 – AR2’s decision was unreasonable and there was no “material flaw” in AR1’s rule 4(5) decision (rejected)

  • AR2 was entitled to conclude that there were “material flaws” in AR1’s decision on the application of rule 4(5) for the purposes of rule 12 (2) (a).
  • “AR2 cannot be criticised in relation to her analysis of the Inquiry’s Report and the identification of material errors in AR1’s decision … AR1 missed out key points … the allegations arising from the Inquiry’s findings were significantly more serious than AR1 had appreciated.” [100-101)
  • “I can see no public law error in AR2’s finding that AR1’s assessment of public confidence issues was materially flawed. There was no proper consideration by AR1 of the key point: the duty of candour owed by a medical practitioner when providing sufficient and accurate information to the family of a patient who has died while undergoing treatment in hospital, and to a Coroner investigating that death … AR1’s conclusion was wholly unsustainable. It shows that his appraisal was tainted by his failure to appreciate key elements of the Inquiry’s findings going both to the seriousness of the allegations and the public interest issues involved.” [105-106]

Ground 2 – AR2 erred in her approach to whether a review was in the “public interest” (rejected)

  • Fair hearing – The Claimant submitted that as there was no transcript of the Coroner’s inquest, this prejudiced the Claimant’s right to a fair hearing. This was dismissed.

“AR1 did not conclude that the non-availability of a transcript of the inquest would prevent a fair and just inquiry, but rather that it could do so. That is why he treated this factor as weighing “fairly heavily” against waiver, rather than decisively, as would have been the case if he had concluded that a fair hearing would be impossible.” [117]

In any event … “Paragraph 52 of GMC’s “Guidance” also states that Assistant Registrars “are not required to carry out a full evidence gathering process as this will come at a later stage.” A full investigation is only carried out where the 5-year rule is not applied. It is for the Case Examiners to consider the evidence and to decide whether or not an allegation should be referred to the Tribunal.” [119]

  • Prior ventilation – the Claimant submitted that AR2 failed to engage adequately with the prior ventilation of the allegations, and to give adequate reasons on this subject. This was dismissed by Holgate J.

“[AR2’s] judgment took into account the weight to be given to prior ventilation. AR2 then pointed out that she was taking into account matters relating to gravity and public confidence which had not previously been evaluated by AR1. She found that the balance tipped the other way.” [124]

“To what extent a decision maker engages with a particular factor is generally a matter of judgment and subject to review solely on Wednesbury principles … it is impossible to say that there was any irrationality here or that AR2 failed to “engage adequately” with this issue.” [125]

  • The Claimant’s regulatory history – The Claimant submitted that when assessing his regulatory history, AR2 improperly “marginalised” that factor. This was dismissed.

“It is apparent that in her decisions AR2 gave substantially more weight than AR1 had done to the effect of the alleged lack of candour on maintaining public confidence in the profession … that did not involve diminishing the weight given to the Claimant’s regulatory history, along with patient safety and professional competence. It was simply a re-evaluation in which those factors were judged by AR2 to be outweighed by the greater weight now given to the “public confidence in the profession” factor.” [131]

“AR2 had in mind the well-known principle that matters going to personal mitigation, such as absence of regulatory history, have less significance than the maintenance of public confidence in the profession (see by analogy Bolton v Law Society [1994] 1 WLR 512, 519; Yeong v General Medical Council [2010] 1 WLR 548 at [19] and [51]; General Medical Council v Bawa-Garba [2019] 1 WLR 1929 at [84]; and Zafar at [52]).” [132]

 Ground 3 – AR2 erred in reconsidering the relevant public interest factors when reaching her own decision under rule 4(5) (rejected)

The Claimant challenged AR2’s substituted decision. Holgate J dismissed this, noting there was nothing to suggest that AR2 altered the weighting of factors given by AR1. Rather, AR2 struck the public interest balance differently because of the weight she gave to factors which AR1 had failed to take into account. [142-148]

Obiter:
Discrepancy between rule 4(5) of the 2004 rules and section 35CC(5) of the Medical Act 1983 (the primary legislation)

Holgate J highlighted that rule 4(5) has been worded differently from the underpinning primary legislation for the rule as set out in section 35CC(5) of the Medical Act 1983, and suggested this does not appear to have been raised in any previous judicial review. Section 35CC(5) provides for the disapplication of the power to pursue allegations where both a five-year period has elapsed since the more recent events giving rise to the allegation and it would not be in the public interest to investigate. However, rule 4(5) is worded differently such that the GMC was not to proceed with an allegation more than five years old unless it was in the public interest to do so.

 “Fortunately, the outcome of the grounds of challenge in this case are not affected by this point and the court has not had the benefit of detailed submissions on it. But it is not something which can be ignored. It should be considered by the GMC and the Professional Standards Authority.” [58]

Commentary
In sum, the High Court found the power exercised by AR2 on behalf of the GMC was not ultra vires. In the circumstances, AR2 was entitled to invoke Rule 12. Further, AR2’s decision was reasonable in the circumstances and properly exercised. The judgment does however remind doctors that in appropriate circumstances, Rule 12 of the 2004 Rules may be challenged successfully. The GMC’s remit to review decisions is subject to certain grounds being met. 

The judgment does however remind doctors that in appropriate circumstances, rule 12 of the 2004 rules may be challenged successfully. The GMC’s remit to review decisions is subject to certain grounds being met. This case highlights the Court’s strict interpretation of those grounds, offering some clarity in terms of when a review might tip the other way. In this case, the failure to identify material factors in the first decision was critical in the Court’s decision. Absent a material flaw, the only other ground under which the GMC may review an initial decision is if new information may alter the first decision and a second decision is necessary to protect the public, prevent injustice against a doctor, or otherwise is in the public interest (r. 12(2) and 12(3)).

FURTHER INFORMATION

If you have any questions or concerns about the content covered in this blog, please contact  Shannett Thompson or a member of the Regulatory team.

 

ABOUT THE AUTHORS

Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising  regulated individuals,  businesses such as clinics and care homes and students in respect of disciplinary investigations. She is a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act. In addition Shannett has built up a significant niche in advising investors and businesses in the cannabis sector.

Lucinda Soon is a professional support lawyer in the Regulatory team, and is responsible for knowledge management and practice development. 

Her work focuses on leveraging the team’s collective knowledge and expertise, ensuring that know-how and current and emerging regulatory developments are identified, evaluated, synthesised, and shared. She is particularly experienced in the adoption of technology to aid the delivery of these outcomes.

 

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