Christina Lambert QC represented Dr W, a consultant psychiatrist specialising in the field of substance abuse, who was charged with offences of sexual assault by the GMC relating to both a patient and a co-worker. Before a Fitness to Practise Panel, the doctor was acquitted of sexual assault and the remaining facts which had been admitted were determined not to amount to misconduct. No warning was issued.
Before the hearing objection had been taken to the use of the GMC’s pilot scheme for formulating charges, in which allegations are pleaded in short form in the Notice of Hearing with supporting factual details relegated to a separate document, the Statement of Case. The Statement of Case is not referred to in the statutory rules for FTP hearings, and hence is not governed by them. In Dr W’s case, the GMC acceded to the defence’s objection and by consent served a new, full and appropriately detailed, Notice of Hearing.
Dr W’s case follows on from an earlier challenge to the pilot scheme, thought to be the first of its kind, CM v GMC. In this case, Christina Lambert and Matthew Hill successfully obtained permission for judicial review on the basis that a pilot scheme Notice of Hearing did not comply with the GMC’s statutory duty and common law obligations of fairness. Following the granting of permission by King J, the GMC withdrew its original charges, served a new (properly particularised) Notice of Hearing, and agreed to pay the registrant’s costs associated with the judicial review.
CM v GMC involved clinical/surgical issues, but the case of Dr W demonstrates the need to consider in all GMC cases – including those arising from issues of propriety and probity – whether the short-form approach to charging within the pilot scheme is fair and lawful. Unless the facts upon which the GMC rely in support of the allegation of misconduct are set out within the Notice of Hearing the registrant does not know formally the case he should meet, and may be deprived of important statutory procedural safeguards, such as those associated with amendment of charges and half-time submissions. Further, and of equal and practical importance, no finding of impairment can be made, nor warning issued, in respect of facts which are not the subject of a charge particularised in the Notice of Hearing – hence the need for clarity as to those facts which form the charge and those which constitute background material only.
