R (on the application of Sheila Adam) v the General Medical Council [2015] EWHC 3378: separating the ‘managerial’ from the ‘clinical’


A distinction must be drawn between a doctor’s management, as opposed to clinical, decisions

When can the GMC reasonably refuse to investigate a complaint? And how strict is the distinction between managerial and clinical decisions when it comes to questions of professional misconduct?  The recent decision in R(on the application of Sheila Adam) v the General Medical Council attempted at least in part to deal with these issues in a judgment that may have a substantial impact on the approach of the GMC in future.

Dr Sheila Adam had complained to the GMC on behalf of ‘Patient BL’, who suffered from Kawasaki disease. In 1993 BL suffered negligent treatment and received substantial damages. As part of the settlement agreement, BL claimed to have been granted so-called  ‘open access’ to the Royal Brompton Hospital for later treatment if necessary. Whether this had been granted at all, and what it meant to the hospital, was later subject to dispute.

In 2010 BL sought treatment at the Royal Brompton Hospital. He was allegedly denied treatment, experienced delays, and was then not prescribed the right medical therapy. In 2011 Dr Adam had a meeting with BL’s parents and sought to raise their concerns with Dr Andrew Mitchell, the Medical Director of NHS London. Dr Mitchell’s suggestions for resolution of the case were not accepted, and BL’s father launched legal proceedings.

Dr Adam contacted Professor Keogh for his advice about the case. Professor Keogh’s personal assistant sent a short response in which he commented ‘whilst he has an obvious interest in clinical care, Bruce has indicated that it is not appropriate for him to become involved in an individual case at this time’.

Dr Adam was not deterred. Eventually, she wrote to the GMC seeking advice. The GMC refused to investigate. This left her, as she complained in a letter to the GMC Chief Executive in August 2012, in a difficult professional position – ‘Serious concerns have been reported to me, as a medical practitioner. My understanding is that the GMC requires any registered medical practitioner to address concerns about the practice of a colleague’.

Dr Adam sought to refer Professor Keogh and fifteen other doctors in relation to the treatment of BL and subsequent fallout. Ten of those investigations were rejected at the rule 4 stage (where the Registrar considers whether the allegations are capable of supporting a finding of impairment). The remaining five were discontinued at the rule 8 stage (where case examiners consider cases selected for review by the Registrar). In July 2014, Dr Adam asked for a rule 12 review by the Registrar of the decision not to investigate Professor Keogh. This review resulted in a decision to take no further action. At both the rule 4 stage and the rule 12 stage, the Registrar had been satisfied that Professor Keogh’s role was too far removed from clinical care for his conduct to support a finding of impairment. The claim for judicial review sought to quash the decisions made at the rule 4 stage and the rule 12 review in relation to Professor Keogh.

Edis J phrased the substance of the claim in the following way:

Was it rational to conclude that the role of Professor Keogh as Medical Director of NHS England was so remote from clinical care in the context out of which the complaint arose, that his failure to intervene was not capable of supporting a finding of misconduct or deficient professional performance”

Edis J concluded that Professor Keogh’s office could not have ‘any responsibility at all for the consequences of the complaints made by and on behalf of BL.

The judgment went further in distinguishing managerial from clinical decisions. The decision made by Professor Keogh about the sphere of his responsibility was:

not a clinical decision arising out of his responsibility for the care of a patient or group of  managerial decision’. Professor Keogh could not be ‘responsible as a matter of professional misconduct for satisfactorily resolving… every problem which is communicated to him by email from anywhere in England’.

The GMC’s purview in investigating misconduct involved Professor Keogh’s ‘responsibility as a doctor’ (original emphasis).

Professor Keogh was subject to some mild judicial criticism for his discourtesy – it ‘would have been better if Sir Bruce had responded personally and more patiently and if he had explained why BL’s case was not his responsibility’. But the judgment was robust in insulating managerial decision making from claims of professional misconduct. The limits of the GMC’s jurisdiction as a clinical regulator have been clearly restated. However, it remains to be seen exactly where regulators chose to draw this line in less clear cut cases.