Ogunsanya Anor v General Medical Council  EWHC 1500 (QB)
The recent decision of the High Court in an appeal against the General Medical Council ('the GMC'). The appeal focused primarily on the GMC's power under the Medical Act 1983 ('the 1983 Act') to investigate the claimant while acting in the capacity of a solicitor.
The 1983 Act confers a power upon the GMC, as a professional regulatory body, to investigate allegations against registered medical professionals. This power can be exercised when the allegations, if proven, could amount to a finding that a registrant's fitness to practise is impaired. For the purposes of the 1983 Act a registered medical professional's fitness to practice can be impaired by reason of their misconduct.
The first claimant, Dr Ogunsanya, was a solicitor advocate and worked part-time as a general medical practitioner. The second claimant, Taylor Wood Solicitors, was a law firm specialising in medical partnerships, regulatory matters and employment law. The first claimant was one of two partners at Taylor Wood Solicitors.
The first claimant was instructed to advise and represent two doctors, Dr Agoe and Dr Ali, in their challenge to a decision by the Care Quality Commission ('the CQC') suspending the registration of their GP practice. As a consequence of the evidence led during this appeal, Dr Agoe, Dr Ali and NHS England ('NHSE') wrote to the GMC raising various concerns about the first claimant.
Although the allegations made against the first claimant related to his conduct while acting in the capacity of a solicitor, he was registered with the GMC. Accordingly, the GMC wrote to the first claimant in August 2019 to advise they were investigating five allegations of misconduct made against him. The GMC subsequently decided not to proceed with three of the allegations. The following two allegations which the GMC proceeded with came before the Court:
''1- stated that you had spoken to one of the former caretakers and they had agreed to continue to provide cover whilst Dr Ali and Dr A challenged the CQC findings, but the former caretakers denied this agreement had been made…..
2- …..was rude and spoke with a raised tone, and sent a number of forceful emails to NHS England''
The power to investigate in circumstances of dual registration
The claimants submitted that by investigating the allegations the GMC were acting out with the regulatory and investigative powers conferred upon them by the 1983 Act. The claimants argued that the statutory responsibility for maintaining the fitness to practise of solicitors belongs to the Solicitors Regulation Authority ('SRA'). The claimants' position was that the GMC did not have the relevant expertise to investigate claims of this nature and that the conduct of a solicitor could not bring the medical profession into disrepute (and therefore, should not be a relevant consideration when assessing whether the first claimant's fitness to practise is impaired).
The GMC submitted that the assessment of alleged conduct under the 1983 Act ought not to be limited to the particular capacity a registrant was acting in at the time of the alleged behaviour. The most pertinent question for the GMC is the nature of the conduct and assessing this conduct against the GMC's overarching objective of public protection, which includes public confidence in the medical profession and the promotion and maintenance of proper standards and conduct for members of that profession.
The Court agreed that the 1983 Act does not limit the question of impairment to conduct in a specific capacity. The Court relied on earlier case law to reiterate this will include consideration of conduct outwith medical practice if it is conduct that would bring disgrace upon the doctor and thereby prejudice the reputation of the profession – the overlap in statutory regulatory regimes did not 'oust' the GMC's power to investigate.
While the Court was satisfied in principle that the GMC could investigate the conduct of the claimant while acting in the capacity of a solicitor, it highlighted that the alleged conduct must maintain a link to the profession of medicine. For that reason, the Court considered it necessary to consider the GMC's power to investigate each of the allegations.
The Court considered that allegation one was the more serious of the two allegations, as it suggested the claimant dishonestly provided information to Dr Agoe. This could give rise to questions about the probity and integrity of the claimant and, as such, was capable of producing a finding of misconduct for the purposes of the 1983 Act.
In relation to allegation 2, the Court were of the view that this allegation had evidential weight relevant to the other allegations rather than constituting a stand-alone ground of concern. The Court highlighted that the behaviour at allegation 2 occurred while the claimant was instructed in a litigation and rude/raised tones and forceful emails might be considered par for the course. In the absence of any further evidence, the defendant could not assume that this was behaviour which could result in a finding of misconduct. Accordingly, the Court held allegation 2 had no link to his fitness to practise as a medical professional and there was no proper basis demonstrated for the GMC to continue investigating this allegation.
This decision confirms that in certain circumstances it will be appropriate for professional regulatory bodies to investigate alleged conduct of registrants acting in a different professional context. Professional regulatory bodies focus should be on the nature of the behaviour, assessed in the context of their own objectives or statutory duties – the fact the alleged conduct took place while the registrant was acting in the capacity of another regulated profession is somewhat a red herring. The statutory duties and objectives of each professional regulatory body are different. One regulator does not fulfil their statutory duty or achieve their objective simply because the other exists and could investigate the allegations. Each professional regulatory body must consider the conduct of its members and how that aligns with their own objectives or statutory duties. This assessment will require some nexus to the subject matter of the profession they regulate.