Expert adviser investigation

[2006] EWHC 3277 (Admin) QBD (Admin) (Davis J) 21/12/2006 TEDR Volume 12 Issue 1

The Facts

The claimant, the Singapore Medical Council (“SMC””, applied for judicial review of a decision of the GMC to cancel the referral of a charge to its Fitness to Practise Panel against the interested party ” Professor Shorvon (“S”). The Court in London described this as “most unfortunate litigation”. The judge described S as “a highly accredited and world renowned researcher in this field” (neuroscience and genomic research). He was and remains Professor of Clinical Neurology at University College London.

S was a doctor registered with the GMC. He had led a Singapore based medical research project. Following complaints about the conduct of the project, the SMC had conducted an inquiry.

Some 30 charges had been brought against S and all had been found proved.

S had been found guilty of professional misconduct and the SMC had directed that his name be removed from the Register of Medical Practitioners in Singapore.

The GMC had been aware of the proceedings and had decided that a charge against S should be referred to its Fitness to Practise Panel. However advice from counsel (with the benefit of expert advice) caused it to cancel the charge and end the disciplinary process. This caused considerable concern to the SMC.

The SMC contended that the failure of the GMC to give it an opportunity to make representations as to the decision to cancel, meant that the GMC had breached that duty, and thus the discretion to cancel was open to attack as having been conducted unfairly. It also contended that the decision to cancel was flawed and unsustainable.

S as the medical practitioner concerned submitted that the SMC did not have locus standi (i.e. standing) to bring the case at all.

The Issues

The claimant, the Singapore Medical Council (“SMC””, applied for judicial review of a decision of the GMC to cancel the referral of a charge to its Fitness to Practise Panel against the interested party ” Professor Shorvon (“S”). The Court in London described this as “most unfortunate litigation”. The judge described S as “a highly accredited and world renowned researcher in this field” (neuroscience and genomic research). He was and remains Professor of Clinical Neurology at University College London.

S was a doctor registered with the GMC. He had led a Singapore based medical research project. Following complaints about the conduct of the project, the SMC had conducted an inquiry.

Some 30 charges had been brought against S and all had been found proved.

S had been found guilty of professional misconduct and the SMC had directed that his name be removed from the Register of Medical Practitioners in Singapore.

The GMC had been aware of the proceedings and had decided that a charge against S should be referred to its Fitness to Practise Panel. However advice from counsel (with the benefit of expert advice) caused it to cancel the charge and end the disciplinary process. This caused considerable concern to the SMC.

The SMC contended that the failure of the GMC to give it an opportunity to make representations as to the decision to cancel, meant that the GMC had breached that duty, and thus the discretion to cancel was open to attack as having been conducted unfairly. It also contended that the decision to cancel was flawed and unsustainable.

S as the medical practitioner concerned submitted that the SMC did not have locus standi (i.e. standing) to bring the case at all.

The Decision

The SMC was not a “complainant” within the ambit of the 1988 Rules: a complainant was not the same as an informant; there was a distinction in the Rules between a complaint and the provision of information.

The SMC had not initiated the matter with the GMC and had not put forward any sort of complaint or charge to be considered by the GMC. The GMC had done this of its own volition after receipt of information from the SMC as another regulator in another jurisdiction; and the correspondence between the GMC and the SMC showed that rather than making and maintaining a complaint, the SMC had been providing information in response to requests from the GMC in its investigation of the matter.

The SMC’s role related to conducting disciplinary proceedings in respect of medical practitioners registered in Singapore. It was most difficult to consider its proper role as extending to inviting, initiating or making charges against a medical practitioner in another jurisdiction.

Whilst in an appropriate case a duty of fairness was capable of existing outside the ambit of (or collateral to) express rules, the evidence did not support the existence of that duty in this instance.

At the “core” of the SMC’s claim was its perception that the proceedings before the GMC were of obvious importance to it and that an adverse finding by the GMC would impact on its own findings and integrity.

However, the judge commented that it was difficult to see how the SMC could be adversely affected by the decision to cancel, or how an “objective and fair-minded observer” could view the decision to cancel as having an adverse impact on the findings or the integrity of the SMC.

The GMC’s decision to cancel the charge had not been shown to be legally flawed. It had:

* instructed expert witnesses,

* taken the advice of counsel,

* considering the relevant material before it,

* reached a rational and sustainable decision based on the above.

The Court did not decide the locus standi point but expressed concern as to whether the SMC did have appropriate standing to bring the claim.

Comment

The SMC was not a “complainant” within the ambit of the 1988 Rules: a complainant was not the same as an informant; there was a distinction in the Rules between a complaint and the provision of information.

The SMC had not initiated the matter with the GMC and had not put forward any sort of complaint or charge to be considered by the GMC. The GMC had done this of its own volition after receipt of information from the SMC as another regulator in another jurisdiction; and the correspondence between the GMC and the SMC showed that rather than making and maintaining a complaint, the SMC had been providing information in response to requests from the GMC in its investigation of the matter.

The SMC’s role related to conducting disciplinary proceedings in respect of medical practitioners registered in Singapore. It was most difficult to consider its proper role as extending to inviting, initiating or making charges against a medical practitioner in another jurisdiction.

Whilst in an appropriate case a duty of fairness was capable of existing outside the ambit of (or collateral to) express rules, the evidence did not support the existence of that duty in this instance.

At the “core” of the SMC’s claim was its perception that the proceedings before the GMC were of obvious importance to it and that an adverse finding by the GMC would impact on its own findings and integrity.

However, the judge commented that it was difficult to see how the SMC could be adversely affected by the decision to cancel, or how an “objective and fair-minded observer” could view the decision to cancel as having an adverse impact on the findings or the integrity of the SMC.

The GMC’s decision to cancel the charge had not been shown to be legally flawed. It had:

* instructed expert witnesses,

* taken the advice of counsel,

* considering the relevant material before it,

* reached a rational and sustainable decision based on the above.

The Court did not decide the locus standi point but expressed concern as to whether the SMC did have appropriate standing to bring the claim.