Does the Regulator Owe a Doctor a Duty of Care? Suresh v General Medical Council [2025] EWHC 804 (KB)

On 16^th April 2018, the GMC received information from the police that a 15-year-old patient had alleged that a consultant anaesthetist, Dr Sridharan Suresh, had sexually assaulted her. It opened an investigation. On 1^st May 2018, the GMC contacted Dr Suresh, and the following day he was informed of the GMC investigation, and that the case would be sent to an Interim Orders hearing.

This came as a shock to Dr Suresh. He already knew that the police were looking at the case, and it was said he expected them to close it. It was claimed that the Trust he worked at told him that they were not referring him to the GMC. However, the police did.

Later that day, Dr Suresh’s body was found in the River Tees. He had taken his own life. It later emerged in court that the evidence of identification given to the police was inconsistent with the perpetrator being Dr Suresh.

Following his death, Dr Suresh’s widow and children brought a claim in negligence against the GMC alleging that in carrying out its functions as regulator, the GMC had breached its duty to take all reasonable care to avoid acts or omissions which might foreseeably cause Dr Suresh psychiatric injury. In addition, they also alleged that the GMC had acted incompatibly with ECHR art.2 because it knew or should have known that Dr Suresh was at a real and immediate risk of suicide.

The GMC applied for, and received, summary judgment in respect of both claims. This article will limit itself to the first limb – the attempt to impose a duty of care on the GMC towards its registrants.

In rejecting the notion of a duty of care, the court did not base its analysis simply on policy considerations per se. Rather, it observed that “the potential liability of a public authority in negligence can be restricted by relevant statutory powers and duties”. In other words, a duty of care would be inconsistent with the duties imposed on a public authority by Parliament.

As an example of this principle, Jain & Another v Trent Strategic Health Authority [2009] 1 AC 853 concerned a claim in negligence brought by the proprietors of a care home against their regulatory body. This regulator applied successfully to the court to close the home based on inaccurate information and without giving any notice to the Jains. By the time this decision was overturned on appeal the Jains’ business had been ruined. Nonetheless, no claim lay against the public authority. The House of Lords noted:

“where action is taken by a state authority under statutory powers designed for the benefit or protection of a particular class of persons, a tortious duty of care will not be held to be owed by the state authority to others whose interests may be adversely affected by an exercise of the statutory power. The reason is that the imposition of such a duty would or might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of the statutory purpose

… The protection of parties to litigation from damage caused to them by the litigation or by orders made in the course of the litigation must depend upon the control of the litigation by the court or tribunal in charge of it and the rules and procedures under which the litigation is conducted.”

If there was a duty owed to the proprietors of such homes, that would be in potential conflict with the statutory duty owed to the residents of those homes.

The same point arose in SXH v Crown Prosecution Service [2017] 1 WLR 1401 where the Supreme Court considered the extent of any duty owed by the CPS. It considered:

“The duty of the CPS is to the public, not to the victim or to the suspect, who have separate interests. To recognise a duty of care towards victims or suspects or both, would put the CPS in positions of potential conflict, and would also open the door to collateral interlocutory civil proceedings and trials, which would not be conducive to the best operation of the criminal justice system. Similar considerations are relevant when considering the applicability of article 8 in the context of a decision to prosecute”

Applying this argument to the present case, the court noted the GMC was governed by its overarching objective to protect the public:

“The recognition of a duty of care to those who are subject to investigation would in my view risk giving rise to clear conflicts where the interests of those subject to the investigation would point in one direction, whereas the duty to investigate in accordance with the overarching objective would point in the other. For example it can be in the interests of protecting the public that an Interim Orders Tribunal swiftly consider whether restrictions are required in the case of a doctor accused of a serious sexual offence (and therefore for the required notifications to take place to allow that to happen) even though the doctor in question might be put at risk of injury as a result of notification and the impact of that process. The imposition of a duty of care in such circumstances would in my view interfere with the performance by the GMC of its statutory powers and duties in the manner Parliament intended. It would therefore be inconsistent with that framework to impose a duty of care at common law

Further, in this case the only steps the GMC had taken were (i) to refer the allegation under Rule 8 and to an Interim Orders Tribunal, (ii) to notify Dr Suresh of the allegation, the investigation and the referral to the Tribunal, and (iii) to require him to give information about where he was employed/engaged. These steps were, as I have set out, all governed by the statute and rules made pursuant to statute. Indeed the act of sending the notification of 2 May 2018 was an act which the GMC was obliged to take. To impose a duty of care in those circumstances would in my judgment cut across, create tension or conflict, and interfere with the application of those procedures such that it can properly be said to be inconsistent with the scheme of the legislation to impose one.”

In rejecting the claim, the court was at pains to stress:

“This is not to say that the GMC should not where possible consider the position of the doctor concerned. As I have explained, much work has been done to try to reduce risks for those subject to the GMC’s procedures. My decision today is not to be interpreted as cutting across those positive developments. My focus, however, is whether there is a legal duty on the GMC at common law to take reasonable care of the doctor who is the subject of its procedure”

In its letters to doctors about investigations, the GMC acknowledges the distress the news may cause, and signposts the recipients to where they can get help. However, this and the other “positive developments” mentioned by the court may be of little comfort to those registrants who face or endure lengthy and stressful fitness to practise investigations, which may ultimately lead to no findings against them. Like Dr Suresh, and the Jains before them, the courts have ruled that they must pay the price for the public good of regulation.