QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF RITA PAL||Claimant|
|THE GENERAL MEDICAL COUNCIL||Defendant|
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Mark Shaw QC (instructed by General Medical Council) appeared on behalf of the Defendant
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See also: Pal v General Medical Council  EWHC 3621 (Admin) (12 June 2008)
"A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of—
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence...
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect."
There are now regulations which spell out the approach that must be adopted by the Council in order to determine whether any complaint should be put to a full committee.
"Where a complaint in writing or information in writing is received by the Registrar and it appears to him that a question arises whether conduct of a practitioner constitutes serious professional misconduct the Registrar shall submit the matter to a medical screener."
Paragraph (3) provided:
"Unless the case is dealt with under the Health Committee (Procedure) Rules... the medical screener shall refer to the Preliminary Proceedings Committee a case submitted to him under paragraph (1), if he is satisfied from the material available in relation to the case that it is properly arguable that the practitioner's conduct constitutes serious professional misconduct."
The matter was then, if those two stages were successfully accomplished, put to the Preliminary Proceedings Committee and it was for them to determine whether the matter should go to a Professional Conduct Committee, where the allegation was one relating to misconduct.
"(1)An allegation shall initially be considered by the Registrar.
(2)Subject to paragraph (5) and rule 5 [rule 5 is not material for the purposes of this case], where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8.
(a) the Registrar considers that an allegation does not fall within section 35C(2) of the Act; or
(b) in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed
he shall notify the practitioner and the maker of the allegation (if any) accordingly.
(4)The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of—
(a) whether or not the allegation falls within section 35C(2) of the Act; or
(b) the practitioner's fitness to practise.
(5)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 5 years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed."
"As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner—
(a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired..."
"As soon as is reasonably practicable after the relevant date, the General Council shall notify the following of an investigation by the General Council of a practitioner's fitness to practise—
(a) the Secretary of State, the Scottish Ministers, the Department of Health, Social Services and Public Safety in Northern Ireland and the National Assembly for Wales; and
(b) any person in the United Kingdom of whom the General Council are aware—
(i) by whom the practitioner concerned is employed to provide services in, or in relation to, any area of medicine, or
(ii)with whom he has an arrangement to do so."
"For the purposes of sections 35A and 35B of the Act, the relevant date shall be the day on which the earliest of the following occurs—
(a) the decision of the Registrar to carry out investigations under rule 4(4) or 7(2);
(b) the referral of an allegation to an Interim Orders Panel;
(c) the referral of an allegation for consideration by the Case Examiners under rule 8;
(d) the referral of an allegation to a FTP Panel; or
(e) the making of a direction that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2."
"To the best of your knowledge have you been or are you currently subject to any fitness to practise proceedings by an appropriate licensing or regulatory body in the UK or any other country?"
That, on the face of it, would appear to require the answer "yes" and of course details, if by "proceedings" one includes any form of investigation.
"The task is to consider and decide whether 'the allegation' (that a registered doctor's fitness to practise is impaired) falls within section 35C(2) of the Act: a process known within the GMC as 'triage'."
She goes on in paragraph 10 to say:
"The Registrar considers whether the allegation appears, if proved, to raise a question about the doctor's fitness to practise (whether it is capable of supporting a finding of impaired fitness to practise)..."
She equates the question to consideration as to whether the allegation, if proved, meant that it was capable of supporting a finding of impaired fitness to practise.
"I decided that the BPS allegation and the psychiatrist allegation should be referred to the Case Examiners. I regarded them as allegations falling within section 35C(2) of the Act, in particular: section 35C(2)(a) (impairment by reason of misconduct). The BPS allegation alleged a breach, or an aggravation/extension of a breach, of a confidentiality in a medical regulatory context. The psychiatrist allegation asserted the inaccurate use of a professional medical title/status in three different contexts. I thought that each of those allegations appeared, if proved, to raise a question about the claimant's fitness to practise as a doctor. The prospects of the allegations being established depended on the precise circumstances."
She concluded that the allegations were, in her view, capable, depending on the circumstances, of supporting a finding of impairment.
"Before making my decision I telephoned the BPS to check whether it regarded the material... as confidential and whether it had any concerns about the way in which the claimant's website had handled it. The BPS confirmed that it did, as regards both aspects. I note from paragraph 9 of the witness statement of Stephen Farnworth [the Investigation Officer] that on 23rd April 2007 the BPS confirmed in writing that it considered the material confidential and had not given the claimant permission to disclose it, or widen its disclosure. As regards the psychiatrist allegation, I checked whether the claimant was on the GMC's specialist register and found that she was not."
"11.At the first stage the Registrar has a ministerial role: so long as there is a complaint (which connotes the making of some form of charge against a practitioner), the complaint is in writing and on its face the complaint raises a real question whether the conduct of a practitioner constitutes serious professional misconduct, he is duty bound to refer the matter to the Screener.
12.At the second stage the Screener has to exercise a judgment whether 'it appears to him that the matter need not proceed further'..."
Then he sets out certain matters which the Screener would have to take into account and makes the point that there is a significant distinction between the language used spelling out the respective duties of the Screener and the Preliminary Committee, PPC.
"Take note that a certificate of public funding dated 20th August 2007 issued to the above-named... [and so on]"
I do not know whether it was sent to us.