Remedy UK Ltd, R (on the application of) v General Medical Council

MR JUSTICE HICKINBOTTOM: The claimant is a campaigning organisation with over 7,000 members in corporate form, which seeks to effect change to proposed reforms in training medical doctors, and in particular to challenge the government's introduction of a new centralised web-based application system for the appointment of junior doctors to training posts. This system, the Medical Training Application Service ("the MTAS"), is part of a wider policy programme of the Secretary of State for Health, namely Modernising Medical Careers ("MMC").

An overt challenge in this court to the introduction of MTAS was dismissed by Goldring J (as he then was) on 22 May 2007. His judgment highlighted a number of failings in the relevant policy and implementation, and since then there have been a number of investigations and reports into the system, including an independent inquiry led by Professor Sir John Tooke who reported in January 2008, and a report by the House of Commons Health Select Committee published on 8 May 2008. The latter concluded that the reputation of the Department of Health "and the leaders of the profession" has been severely diminished as a result of failings of the MTAS. It was critical of both policy and implementation.

In furtherance of their campaign, the claimants made a complaint to the General Medical Council ("the GMC") on 23 October 2008 in respect of the Interested Parties in this claim, Sir Liam Donaldson (the Chief Medical Officer) and Dr Sarah Thomas (who chaired the Department of Health Recruitment and Selection Steering Group), namely that, as the people largely responsible for the MTAS policy and implementation, they were unfit to practise "in a managerial field of work".

The GMC Registrar decided not to refer the complaint to case examiners, effectively bringing the matter to an end so far as the GMC was concerned, and it is that decision which the claimant now seeks permission to challenge.

The legislative framework is, briefly, as follows. By section 1(1A) of The Medical Act 1983, the main objective of the GMC in exercising its functions is to "protect, promote and maintain the health and safety of the public". Section 35C of that Act concerns allegations made to the GMC against a registered person that his fitness to practise is impaired. By section 35C(2) a person's fitness to practise is to be regarded as impaired only on specified grounds which are, so far as relevant to this case, misconduct and deficient professional performance. Section 35C(4) provides that an Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel. Under section 35CC, rules may provide for the Registrar to exercise certain functions of that Committee, and Rule 4 of the Schedule to the General Medical Council (Fitness to Practise) Rules Order of Council 2004/2608 provides that, in the place of the Committee, the Registrar shall initially consider an allegation and "where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to case examiners for consideration".

The Registrar, therefore, has a very narrow role, namely to determine "whether the allegation is capable of producing a finding of misconduct" on the part of the registered practitioner: Rita Pal v GMC [2002] EWHC 1061 Admin at paragraph 43 per Collins J. If he considers it is capable, he must refer it.

In respect of this matter, the Registrar did not refer the matter as he did not consider it to be so capable. The reasons he gave for that conclusion were (i) the allegations made could not be said to fall within the provisions of section 35C(2) on deficient professional performance as they had nothing to do with the practice of medicine; (ii) no instances of conduct were specified that could be said to constitute misconduct; and (iii) in any event, whatever the conduct of the interested parties with regard to the MTAS might have been, that conduct could not, on the basis of the complaint, sensibly be said to be capable of impinging on their fitness to practise as medical practitioners.

The claimant originally contended that the Registrar erred in law in four respects, but they have not pursued only two of those grounds at the oral hearing before me this afternoon.

I need refer to the other two grounds – now abandoned - only briefly. First, the claimant contended that the Registrar erred in taking into account an irrelevant consideration, namely whether the GMC's fitness to practise procedures were an appropriate vehicle for the ventilation of grievances that were essentially about matters of national policy and its implementation. The claimant's grievances clearly are about such matters, rather than medical malpractice by the individuals against whom complaint is made; that seems to me to be the whole point of their organisation. But, following clarification by the defendant, the claimant accepts that there was nothing wrong in the Registrar saying that; and he did not, in saying that, apply the wrong test. The second abandoned ground was Wednesbury unreasonableness, which again is, in my judgment, properly not pursued today.

Two grounds were pursued. First, Mr de la Mare for the claimant submitted that the Registrar erred in treating "deficient professional performance" as being confined to performance in the practice of medicine; second, he submitted that the Registar erred in law in restricting misconduct to misconduct material to a practitioner's fitness to practise medicine.

Mr de la Mare before me today has stressed the meaning (or, at least, the arguable meaning) of "professional" in relation to the first ground. On the authority of Roylance v General Medical Council [2001] 1 AC 311, he submitted that it did not mean “clinical” or “medical”, but merely that it had a link or association with the registered practitioner's calling as a practitioner. Consequently, in Roylance, where the acts and omissions were done as a chief executive officer of a hospital trust, it was held that they could fall within the term "professional" in that sense. He submitted that it is at least arguable that the acts and omissions of the Chief Medical Officer and Dr Thomas in relation to the MTAS, although very different from the managerial functions of an executive officer of a hospital, could have the appropriate link to their calling as referred to in Roylance. It seems to me that that submission has some force in this application, in which I am considering only whether the claim of the claimants is arguable, which is, on any view, a low hurdle to overcome. Whilst I consider the claimant’s arguments in relation to the first ground the stronger, it seems to me that that approach to the first ground may also inform the approach to the second ground.

Mr Englehart QC, for the defendant, submitted that the disciplinary jurisdiction of the GMC is simply inappropriate to the task which the claimants require of it; that is, effectively, an inquiry as to who was at fault in the policy and implementation of the MTAS. Those submissions too, it seemed to me, had some force, and it is not without some hesitation that I have come to the conclusion that the claimant should be granted the permission they seek. However, in respect of the two remaining grounds, having considered the submissions put by Mr de la Mare, particularly with regard to the deficient professional performance limb, I cannot say today that this claim is unarguable.

In relation to the second ground (misconduct), Mr Englehart submitted that the particular conduct in respect of which complaint is made is not well particularised. However, having been taken to the complaint letter, I am satisfied that that letter identified the professional performance and conduct in respect of which criticism was made sufficiently to enable the Registrar to refer it and, just as importantly, enable the Interested Parties to make a response without legal embarrassment. The complaint they have to meet is sufficiently clear.

For those reasons, I shall grant the permission that the claimant seeks, in respect of both remaining grounds. I should add this: the claimant and its members should not endow the permission I have granted with undue optimism so far as the ultimate result of this application for judicial review is concerned. The hurdle at this stage is, as I have said, low. I have merely accepted that the claim is arguable: neither more, nor less.

That takes me on to a supplementary application in respect of a protective costs order. That order is sought by the claimant, whose members have raised a considerable sum of money to progress this claim. They have offered by way of an order a cap of £22,500.

I consider that they do fall within the guideline criteria in R (Cornerhouse Research) v The Secretary of State for Trade and Industry [2005] EWCA Civ 192. For the reasons I have given the case is arguable, and there seems to me some considerable public interest in this case so far as it concerns the scope of the disciplinary jurisdiction of the GMC; and, furthermore, neither the claimant nor its members have any private interest in the outcome of this litigation. I have briefly outlined the reasons they are pursuing it.

The amount of the protective costs order that has been offered appears to me to be a reasonable sum. The defendant has been coy in indicating the potential costs burden by way of an estimate, but this claim is a limited claim concerning the jurisdiction of the GMC and, important as the issues are, the costs should be modest in scope. The sum sought is a proportionate and reasonable amount, and in particular reasonable for the one-day hearing which this case should take.

I have been pressed by Mr Englehart to make a reciprocal protective costs order. I have particularly borne in mind the GMC's position both as a charity and as a disciplinary body in respect of all of the medical profession. However, I am not persuaded that such an order should be made. There is, in my judgment, no room simply for a tit-for-tat order, and I am not persuaded that the elements are in place sufficient to warrant an order protective of the costs in reciprocation for the application that has been made (and now order obtained) by the claimant.

For those reasons, I shall grant the protective costs order as sought by the claimant in the sum of £22,500 but shall make no protective costs order in favour of the defendant.

MR JUSTICE HICKINBOTTOM: Mr de la Mare, are there any directions that you wish to have?

MR DE LA MARE: There is one matter and then some directions. The ordinary directions should apply, my Lord.

MR JUSTICE HICKINBOTTOM: Yes.

MR DE LA MARE: I understand my learned friend is seeking an extension of time for the time to supply the detailed grounds and evidence. Obviously it is up to him to inform the court as to what is needed, and we will be agreeable to anything sensible.

The one matter I do raise though is the question of costs in relation to the PCO. Obviously the costs of the permission hearing must be in the case, but in relation to the PCO it is a simple application, it has been necessitated by my learned friend's resistance to it. All of the contents of the claim form would have had to be done in any event, so the costs to which I refer are the costs of the correspondence once the GMC articulated its resistance and a reasonable proportion of the costs of today. I cannot exaggerate the importance of that, the main issue before my Lord was arguability, and I would submit the reasonable estimate of the costs of today is in the order of the third of the costs of today's attendance. This hearing would have occurred in any event, even if my learned friend had conceded the point of arguability, as we submit he should have done, because of his resistance to the PCO.

MR JUSTICE HICKINBOTTOM: Have I got a schedule of costs, and I apologise if I have?

MR DE LA MARE: You have not, I do not have a costs schedule.

MR JUSTICE HICKINBOTTOM: Your application is ...

MR DE LA MARE: For there to be either an agreement or a summary assessment of the reasonable costs in relation to the PCO in such sum as my Lord thinks fit, I submit a third of the costs of attendance today and all the costs of the relevant correspondence.

MR JUSTICE HICKINBOTTOM: Yes.

MR DE LA MARE: And the witness statements, in particular a large portion of James (inaudible)'s second witness statement is directed at disabusing the court of some of the factual inaccuracies and putting the position.

MR JUSTICE HICKINBOTTOM: What about the costs of the PCO, Mr Englehart?

MR ENGLEHART: My Lord, I have to say it is a pretty novel proposition. Normally, as your Lordship knows, PCOs are dealt with on the papers, and the fact that a respondent says it is not a case that is appropriate for a PCO does not mean that the claimants then get their costs on the papers having been awarded it. What we were here arguing about today was permission. The PCO side of it -- I do not know, I did not time it, but I suspect your Lordship will know -- took hardly any time at all, it was very much a bolt-on, and your Lordship is now being asked to do a summary assessment without any schedule or without any knowledge --

MR JUSTICE HICKINBOTTOM: Well, I am not, I am being asked for a third of the costs today.

MR ENGLEHART: But he asks you to make a summary assessment of a third.

MR JUSTICE HICKINBOTTOM: No, there is no schedule, he wants it to go off for a detailed assessment.

MR ENGLEHART: He said he wanted it to be agreed or a summary assessment.

MR DE LA MARE: Detailed assessment.

MR ENGLEHART: I would respectfully invite your Lordship to say on any showing to order at this stage a third to be assessed would be way beyond what is justified in the circumstances. We were here on permission, that is what mattered, and if your Lordship will recollect, the judge on the papers did not deal with the question of the PCO. Someone had to deal with it, and I would respectfully suggest that if we had actually dealt with it on the papers and the judge on the papers had done as your Lordship has and granted permission, he would not have said, and by the way the respondents have to pay a third of the costs of the claimants in seeking a PCO.

MR JUSTICE HICKINBOTTOM: Yes. Anything else?

MR DE LA MARE: My Lord, can I answer that last point very shortly. Yes of course, says my learned friend, once he saw Mr James (inaudible)'s second statement putting matters straight, disabusing the factual misapprehensions he had been operating under, to say, okay, that is the position, we resist permission, but if permission is granted we agree to a reasonable PCO and the sum we suggest is this. They did not do that, they adopted a (inaudible) position, as my Lord related, in respect of the matter. It is an unsatisfactory set of circumstances and justifies a modest costs order.

MR JUSTICE HICKINBOTTOM: I agree. I think the appropriate order, because it seems to me that the claimants are entitled to their costs of the protective costs order application, is that the defendant shall pay the claimant's costs of the application for the protective costs order to be the subject of a detailed assessment if not agreed, assessment to be postponed until the conclusion of the claim or further order of the court. I cannot say that one third of the costs is appropriate, it seems to me that that proportion is far too high, but a costs judge will be able to deal with that.

MR DE LA MARE: Of course, my Lord, it was a very short matter because otherwise we would have had to disclose the nature of the argument, which is (inaudible).

MR JUSTICE HICKINBOTTOM: I did not postpone it for that reason, but that would be another reason to postpone it. I think you have disclosed the uplift anyway.

Now, in terms of anything else. There are no directions so far as you are concerned, Mr Englehart?

MR ENGLEHART: I have 35 days. Given the fact of the long vacation now, might I ask as a matter of precaution that I am given until the end of September.

MR JUSTICE HICKINBOTTOM: Yes, because 35 days takes you until the end of August, which is probably not very helpful.

MR ENGLEHART: I was worried. If your Lordship would extend time for service of the evidence and the detailed grounds to the end of September, I would be very grateful.

MR DE LA MARE: Absolutely no objections from my side of the court.

MR JUSTICE HICKINBOTTOM: Any other directions required? I will direct that detailed grounds and evidence be served by the defendant by 4pm on 30th September.