Case - Deborah Henshall v. General Medical Council & Others

[2006] Lloyd's Rep Med 103 : (2006) 88 BMLR 146, Court of Appeal - Mary O’Rourke QC
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The Preliminary Proceedings Committee of the General Medical Council, having identified the correct test to apply in order to decide whether a complaint should be referred to the Professional Conduct Committee, had failed properly to apply that test to the material before it and had gone beyond the limits of its function by purporting to resolve disputed factual issues.

The appellant mother (H) appealed against the refusal of her application to claim judicial review of a decision of the Preliminary Proceedings Committee of the General Medical Council not to refer her complaints against three doctors to the Professional Conduct Committee under the disciplinary procedures set out in the Medical Act 1983 and the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 . H had made a complaint to the GMC alleging serious professional misconduct on the part of three doctors who had been involved in a clinical trial of a treatment for premature babies with breathing difficulties at the hospital in which H's two daughters had been born. H's first baby died shortly after birth and the second baby was subsequently found to have cerebral palsy. H complained about the integrity of the clinical trial. The complaint was referred to the proceedings committee for consideration. One of the doctors provided responses to H's allegations to the proceedings committee on the basis that his communications would not be disclosed to H. The proceedings committee considered the complaints and the doctors' responses to them, representations made on their behalf, certain articles in the professional press, a report commissioned by the hospital and many other documents, and concluded that none of the complaints should be put before the conduct committee as there was no real prospect of H proving the factual basis of the complaints and that even where there might have been such a prospect, there was no real prospect of proving that any of them amounted to serious professional misconduct. The judge refused H's application for judicial review. H contended that the proceedings committee had (1) failed to apply the correct legal test in deciding not to refer H's complaint to the conduct committee by setting the threshold for referral too high and by usurping the role of the conduct committee by resolving issues of fact; (2) wrongly declined to disclose the doctor's written responses to H's complaints; (3) wrongly relied in reaching its decision on one of the articles in the professional press.

HELD: (1) The correct legal test that the proceedings committee was required to apply in order to decide whether a matter ought to be referred to the conduct committee was that set out in r.11(2) of the 1988 Rules of whether the complaint appeared to raise a question whether the practitioner had committed serious professional misconduct, R v GMC, Ex p Toth (2000) 1 WLR 2209 considered. Having identified the correct test the proceedings committee failed properly to apply it and went beyond the limits of its function as laid down in r.11(2) and purported to resolve disputed factual issues rather than deciding whether the material before it raised a r.11(2) issue. (2) The question for the proceedings committee was whether in all the circumstances, and given the doctor's absolute prohibition on disclosure, it was appropriate for the committee to take his responses into account in reaching its decision. There was nothing to indicate that the committee addressed that question. But for its supposed obligation of confidentiality, the proceedings committee would or might well have sought H's comments. It followed that either H had been denied the opportunity to respond or that the committee had taken into account material which it should have ignored. (3) The proceedings committee had exceeded its powers in placing substantial reliance on the article, as by doing so it embarked upon the evaluation of evidence and upon manifestly partial material. It was not the committee's task to evaluate conflicting professional views of issues raised by the complaint. The matter was remitted to a reconstituted committee for reconsideration.

Appeal allowed.

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