Rule 7 letters and amended allegations
R (on the application of Rudling v General Medical Council)  EWHC 3582
R (on the application of Rudling v General Medical Council)  EWHC 3582
Where a medical practitioner's fitness to practise was being investigated and the General Medical Council (‘GMC’) had, as required by Rule 7 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (‘the Rules’), notified the practitioner of the particulars of allegation established in the course of the GMC investigation, the GMC was not obliged to send a fresh Rule 7 letter in order to amend or expand upon the original allegations on the basis of new evidence coming to light after Rule 7 disclosure.
The claimant GP, JR, brought judicial review proceedings in respect of a decision of the Investigation Committee of the GMC to accept an application by the GMC to amend and expand upon particulars of allegation disclosed at the Rule 7 stage of the GMC investigation. The revised allegations were expanded to include allegations of dishonesty on the basis of new evidence, which had come to light in the course of criminal investigatory procedures, and which had taken place subsequent to Rule 7 disclosure.
A patient of JR’s who was a child had died of Addison’s disease in December 2012, and JR had had a telephone conversation with his mother the day before his death. During that conversation, JR did not read the patient's medical record or keep a note of the discussion because, she claimed, her computer had not been running. She also argued that the incident was an isolated one in an otherwise unblemished career. At the conclusion of the GMC investigation phase and in accordance with Rule 7 of the Rules, the GMC wrote to JR providing disclosure and setting out the particulars of allegation, which were essentially threefold: failing to read the patient's notes; failing to make a contemporaneous note of the telephone conversation; and making a retrospective record in the patient's notes without making it clear that the entry was retrospective.
JR provided a written response to the Rule disclosure via her solicitors, following which the matter was referred to GMC case examiners, who determined that the matter was appropriate for conclusion with a warning, in accordance with Rule 11 of the Rules. JR was provided with the opportunity to respond to the offer of a warning, and through her solicitors confirmed that she was not prepared to accept a warning, submitting instead that the matter should be concluded with no action. In light of JR’s response, the Case Examiners determined to refer the matter for consideration by a hearing of the Investigation Committee.
The matter was listed for hearing before the Investigation Committee but adjourned pending a criminal investigation, which led to criminal charges against JR. JR was subsequently tried but acquitted of the charge of gross negligence manslaughter, with the prosecution offering no evidence in relation to a further charge of perverting the course of justice.
Following the conclusion of the criminal proceedings, the GMC moved to relist the hearing of the investigation Committee, and in the course of which served updated particulars, alleging dishonesty for the first time as a result of new evidence from an IT expert instructed in the course of the criminal proceedings. The GMC also indicated that, in light of this new evidence, the GMC would be submitting that the matter should be referred to a substantive hearing of the Medical Practitioners Tribunal. JR objected to this on the basis that this attack on her probity was a new allegation and that a fresh Rule 7 letter should have been sent in respect of it. However, the Investigation Committee found that the updated particulars merely expanded on the existing allegations and allowed them to proceed, admitting the new evidence under Rule 34(1).
JR sought to argue that admission of this new material deprived her of the statutory protections afforded by the Rules in that she has been unable to make written representations to the case examiners on the probity allegations.
The court’s decision
Both parties had agreed that there was no direct authority on the interpretation of the relevant Rules, although a number of broad principles had emerged from various cases. Mrs Justice Farbey, giving the court’s judgment, concluded that the Rules’ primary purpose was to protect and promote the health and safety of the public, so the public interest was the primary yardstick by which the court would measure its conclusions.
The Rules did indeed also aim to provide protection to practitioners who were under investigation, but this was an additional function. The judge also found that Rule 7(1)(c) did not impose a mandatory requirement to refer all new material to the case examiners. The Rules provided for further investigation and evidence at each stage of the process, and there were many opportunities for new facts and matters to emerge. Had there been a requirement to refer new material to the case examiners, the Rules would have said so, but they did not.
In any event the court found, such a requirement would bring delay into the proceedings, which was contrary to the fundamental objective of dealing with proceedings expeditiously and efficiently; delay was also contrary to the public interest. The Rules also provided for the matters underlying the allegations to be notified to the practitioner at various stages after completion of the Rule 7 process and those provisions would be irrelevant if there was not, at the least, an implied power to amend an allegation after the Rule 7 process had been concluded.
The court also dismissed an argument advanced by JR based on the loss of an opportunity to be offered undertakings in accordance with Rule 8(3). Rule 8(3) did not give practitioners the right to offer undertakings; it was simply something that the case examiners could invite them to do and loss of an opportunity to give undertakings was not a strong enough factor to require the Rules to be interpreted as JR had sought to argue.
Finally, the court concluded that the probity issues were not a new allegation but simply an expansion of the original in that they related to the same patient, the same record-keeping and formed part of the same course of conduct, so they were admissible. As to prejudice, JR had not suffered any procedural unfairness as a result of the submission of the new material to the committee. She had received a detailed account of the allegations and had seen the evidence which the GMC was relying on. She also had the right to attend the hearing, be represented and was entitled to submit any written representations or other documents. Those safeguards were founded on the Rules and ensured adequate protection for practitioners.
Implications and Conclusion
Medical Defence organisations and solicitors will no doubt take this decision into account when advising doctors about the potential pitfalls of the Rule 7 stage, not least that if further evidence is uncovered, which adds weight to the substance of an allegation that has already in part been made, the GMC will not necessarily be required to issue a fresh Rule 7 letter and disclosure to the practitioner.
The features of this case are somewhat unusual and arise in the very particular and discrete context of a matter having been referred to a hearing of the Investigation Committee, and the particulars of allegation having been amended at the application of the GMC between consideration by Case Examiners at Rule 8 and convening of the Investigation Committee. However, the decision should be extension also have ramifications for cases referred for consideration by a substantive hearing of the Medical Practitioners Tribunal, in circumstances in which the GMC seek to rely to additional evidence coming to light after the decision of case examiners to refer to a hearing of the MPTS.
Whilst the established principle has been that the goalposts cannot be moved so substantially post Rule 8 as to amount to new allegations not originally considered by case examiners, the case provides some delineation on where the boundaries lie between new allegations arising out of substantially the same issues and new material so as to compromise the fairness of proceedings.
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