The High Court has refused a consultant obstetrician and gynaecologist’s application to quash the Medical Council’s decision to advise the public that it had sanctioned him with advice over his professional performance.
The judgment, delivered by Mr Justice Michael White on 9 October 2012, concerned a Council decision made on 18 January 2011. The doctor argued that the Medical Practitioners Act 2007 did not authorise the Council to publicise a sanction under section 71(a). He also sought an injunction preventing publication.
The proceedings followed complaints about the doctor’s treatment of three patients at a private hospital in the South West. The Fitness to Practise Committee did not uphold complaints concerning two patients. Of seven complaints concerning the third patient, two were withdrawn, one was not proven and four were upheld. The committee found poor professional performance relating to blood transfusion enquiries and the circumstances of a transfer to a main hospital. It recommended that the doctor be advised about his conduct and said it considered him a competent practitioner.
The Council adopted the recommendation and decided to advise the public of the inquiry’s outcome. It maintained that decision after considering a proposed arrangement to limit communications to letters to complainants and other connected parties.
The court held that the Council’s powers under sections 7(1), 7(2)(k) and 7(5) of the Act gave it discretion to publish a sanction of advice or admonishment where publication was in the public interest. It found that the omission of advice or admonishment from the publication provisions in section 85 did not restrict those wider powers. The court said section 7(2)(l), concerning advice to the public on matters of general interest, was not relevant to this application.
The judge also distinguished publication to the public at large from notifying parties with a significant connection to a complaint. He said the Council could communicate the outcome to the private hospital and the National Treatment Purchase Fund without that amounting to publication to the public generally.
A separate argument in the doctor’s written submissions said publication would be unfair, unduly harsh and disproportionate even if legally permitted. The judge declined to consider it because it had not been included in the grounds on which leave for judicial review was granted or argued at the substantive hearing. He found no new facts or exceptional circumstances that would justify adding the ground.
The court refused the relief sought. The judgment did not determine the separate fairness argument on its merits.