Doctors: The Regulator’s Duty of Care to Registrants
In what was, on any view, a tragic case – which highlights the enormous stress and anxiety caused to practitioners by fitness to practise investigations – proceedings were brought by the widow and two children of a consultant anaesthetist with a distinguished and unblemished professional record who took his own life after he had been notified earlier that day by the General Medical Council that it had opened an investigation into his fitness to practise: Suresh & Ors v General Medical Council [2025] EWHC 804 (KB) Marcus Pilgerstorfer KC, Deputy Judge of the High Court
The GMC opened the case because it had received a referral from the police during a criminal investigation into allegations made by a 15-year-old patient that the doctor had committed a sexual assault whilst she was under his care. It was right to record that the identification evidence given to the police by the complainant was inconsistent with the perpetrator being the doctor. A decision was ultimately taken that there was insufficient evidence to give rise to a realistic prospect of conviction, and the doctor has never been found to have committed the offence.
The thrust of the Complainant’s case was (1) the GMC fell under a duty at common law to the doctor concerned to take reasonable care to avoid foreseeable psychiatric injury or suicide; and (2) the GMC was subject to an operational duty to prevent loss of life under Article 2 of the European Convention on Human Rights (ECHR) which was actionable under sections 6 and 7 of the Human Rights Act 1998 (HRA).
The case was also presented to the Court as an opportunity to review a number of past cases in light of the Supreme Court’s decision in Robinson v Chief Constable of West Yorkshire Police [2018] AC 736 and, applying the framework outlined there, to consider whether a duty of care was owed by a regulator in respect of its initial notification of an investigation.
The issues arose in the context of an application by the GMC seeking an order striking out the claim pursuant to Civil Procedure Rules 1998 rule 3.4 or, alternatively, summarily dismissing the claim pursuant to CPR rule 24.3.
Applying the general principles in accordance with the framework identified in Robinson, it was inconsistent with the statutory scheme established under the Act and Rules to hold that the GMC owed a duty of care to the doctor subject to investigation in relation to the timing, manner and content of the communication to him of that fact. The statutory powers and duties of the GMC restricted the scope of its liability in negligence as explained in the cases of D v East Berkshire Community Health NHS Trust [2004] QB 558 (CA) and [2005] 2 AC 373 (HL), Jain v Trent Strategic Health Authority [2009] PTSR 382, SXH v Crown Prosecution Service [2017] 1 WLR 1401 and N & another v Poole Borough Council [2020] AC 780.
For those reasons also, a duty of care did not arise in respect of the GMC’s positive acts or omissions, and neither could it be argued that the GMC assumed responsibility for the doctor’s wellbeing.
The pre-Robinson caselaw fell to be read in light of the developments explained in that and subsequent cases.
Had it been necessary to give effect to policy considerations (as described by Lord Reed) or by affording such considerations a more centrally dominant role as Lord Hughes did in Robinson, the Court would have attached significant weight to those identified in cases such as Elguzouli-Daf v Commissioner of Police of the Metropolis & Another [1995] QB 335 and Brooks v Commissioner of Police of the Metropolis & Others [2005] 1 WLR 1495. Those considerations applied just as much to a regulator in the position of the GMC as they did to the police and CPS. Imposing a duty of care would, in his Lordship’s judgment, have a similarly chilling and diverting effect on the GMC’s task of investigating fitness to practise in order to protect the public.
Assuming that the foreseeability issue would be determined in the Claimant’s favour, the Court determined that there was a clear and certain answer in the negative to the question of whether a duty of care was owed by the GMC to the doctor. That conclusion was reached by the application of general principles of negligence liability to the case as pleaded, taken at its highest.
Following Robinson and Poole, the correct approach was no longer uncertain or developing. The Particulars of Claim therefore did not disclose a legally recognisable claim in negligence against the Defendant. That claim must therefore be struck out. In the alternative, his Lordship concluded that the Claimant had no real prospect of succeeding on the duty issue and there was no other compelling reason for the issue to be disposed of at trial. He would, therefore, summarily dismiss the claim.
As to the Human Rights Claim, it was clear that the Claimants could not establish (at least) a constructive knowledge on the part of the GMC of a real and immediate risk to the life of the doctor or, alternatively, that there were no real prospects of them doings so. The Court would therefore strike out (or summarily dismiss) the claim on the alternative basis.