A, R (on the application of) v General Medical Council [2020] EWHC 3800 (Admin) (12 March 2020)

A group of doctors, part of the same WhatsApp group, has failed in their attempt to seek a judicial review of the decision to refer their case to the MPTS.

The group of doctors (claimants) are all doctors who were members of a closed encrypted WhatsApp. As a result of a police investigation into a third party, messages between members of the group were brought to the attention of Health Education England (“HEE”) which, in turn, made a formal referral to the GMC.

Thereafter, the GMC obtained further information from the police and, pursuant to a court order of 13 July 2018, a full transcript of the messages between the Group for the relevant period was disclosed to the GMC.

The claimants were each notified of the allegations against them by the GMC which related to the content of certain of the messages, or attachments, and each claimant’s failure to remove himself from the Group, or to report the contents of the messages or attachments to the GMC, the police and/or their respective employers. It was alleged that each claimant’s conduct in these respects had brought the profession into disrepute and in this regard each claimant’s fitness to practise was impaired by reason of this misconduct.

Each claimant provided a detailed response to the allegations and evidence of their remediation work. All admitted they had been members of the group and had sent and/or received the relevant messages; four admitted the failure to report; two admitted that they had “failed to act with integrity and in a way which would justify patients’ trust in [them] and the public’s trust in the profession”. All denied impairment.

GMC Case Examiners acknowledged that the allegations did not directly relate to clinical practise, however, the view was taken that this did not mean that the claimants’ actions could not amount to misconduct or give rise to a finding of impairment to practise. A decision was therefore taken to refer the claimant’s cases to the Medical Practitioners Tribunal Service (MPTS).  This decision was the subject of the application for judicial review.

The claimants sought to challenge these decisions of the GMC case examiners on three grounds:

(1) that the decisions breached the claimants’ Article 8 ECHR right to respect for their correspondence (“the Article 8 ground”);

(2) that the decision that the maintenance of public confidence in the medical profession required that each of these claimants’ cases be referred to the MPT was irrational (“the public confidence ground”); and

(3) to the extent that the case examiners relied on a duty to report, that the decisions were irrational and/or ultra vires (“the duty to report ground”).

Mrs Justice Eady noted that there was a degree of overlap between these grounds and, indeed, the focus of the claimants’ submissions have been under the first heading, which also raises points relevant to grounds 2 and 3.”

In refusing permission for judicial review, Mrs Justice Eady was not persuaded on any of the three grounds.

She concluded the Article 8 grounds that:

“I accept that there is a need to assess how far it is right to interfere with the claimants’ Article 8 rights in these circumstances, but I am equally satisfied that there is no arguable case that the line has been crossed at this stage.”

Consequently, the duty to report grounds was also disposed.

Regarding the duty to report grounds, Mrs Justice Eady noted it was “a significant proposition for which no authority has been identified.”

Concluding her judgement, Mrs Justice Eady said:

“Although the courts may intervene with prosecutorial decisions by way of judicial review, that would be in exceptional circumstances. There are no such exceptional circumstances here. There is no reason, even if the claimants are right on their Article 8 arguments, why these matters should not be considered by the MPT. It will be for the MPT to decide what degree of further interference with the claimants’ Article 8 rights is then to be allowed and at that point the claimants can be heard and may have cause for further complaint should they be so advised. In these cases there is an alternative remedy for the claimants, which is in the proceedings before the MPT, which can now take place.”

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