2025-04-08 13:00:32
In Suresh v General Medical Council [2025] EWHC 804 (KB), Marcus Pilgerstorfer KC, sitting as a judge of the High Court, had to determine whether a healthcare regulator, the General Medical Council in this tragic case, owed a duty of care to registrants when exercising its fitness to practise functions.
Dr Sridharan Suresh (“Dr Suresh”) was a Consultant Anaesthetist with a distinguished and unblemished professional record. The GMC had received a referral from the police during a criminal investigation into allegations made by a 15-year-old patient that Dr Suresh had committed a sexual assault whilst she was under his care. The identification evidence given to the police by the complainant was inconsistent with the perpetrator being Dr Suresh. A decision was ultimately taken by the police that there was insufficient evidence to give rise to a realistic prospect of conviction. Dr Suresh was never found to have committed the offence. The police informed the GMC of the allegation.
On 2 May 2018, Dr Suresh, took his own life after he had been notified earlier that day by the GMC that it had opened an investigation into his fitness to practise.
Dr Suresh’s widow brought a claim against the GMC, alleging:
- the GMC owes a duty of care at common law to the doctor concerned to take reasonable care to avoid foreseeable psychiatric injury or suicide; and
- 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 is actionable under sections 6and 7 of the Human Rights Act 1998 (“HRA”).
The GMC admitted that doctors undergoing fitness to practise procedures may be subject to stress, but no admission was made in respect of increased risks of psychiatric injury or suicide. The GMC’s position was that, as an arm’s length regulator, it had no way of knowing whether Dr Suresh was at any risk of psychiatric injury or suicide. The GMC denied the existence of a duty of care between a regulator and a person being investigated..
The GMC applied to strike out the claim on the basis that it did not disclose any reasonable grounds for bringing the case, or for summary judgment against the claimant on the ground that the claim had no real prospect of success.
The judge held that the GMC were obliged under their statutory rules to investigate the allegation and decide whether it should be considered by the Medical Practitioners Tribunal because the allegation on its face raised an issue of potentially impaired fitness to practise. That, in turn, triggered an obligation under the applicable rules to write to Dr Suresh “as soon as reasonably practicable” after the referral for consideration, informing him of the allegation.
The judge did not accept that the GMC owed a duty of care to a doctor under investigation. He said:
“When investigating a doctor, as with performing its other functions, Parliament has decided that the overarching objective of the GMC is to protect the public by protecting, promoting and maintaining their health, safety and well-being, promoting and maintaining public confidence in the medical profession, and promoting and maintaining proper professional standards and conduct in that profession … The GMC must achieve that when it complies with Parliament’s requirement that it investigate complaints … 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.
… 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.”
Dr Suresh’s widow had alleged that a duty of care could have been complied with by wording differently the letter of notification by the GMC to Dr Suresh, avoiding informing the doctor that areas of good medical practice have been called into question. The judge rejected this argument, saying:
“Such a duty, were it to exist, would create a clear inconsistency with the statutory duty on the GMC to inform the doctor of “the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired … More generally, a common law duty governing other aspects of the communication, including its contents, manner and timing risks creating tension or conflict with the duties to which the GMC is subject under the statutory scheme.”
In relation to the claim under the Human Rights Act, the judge said he was clear that the claimant could not establish at least constructive knowledge on the part of the GMC of a real and immediate risk to the life of Dr Suresh and said: “I have reached a clear view that this case falls short of the circumstances in which an operational duty has been held to apply by the ECtHR and the domestic courts by some fair distance.”
The General Pharmaceutical Council’s statutory obligations to investigate in the General Pharmaceutical Council (Fitness to Practise and Disqualification etc.) Rules 2010 are very similar to the rules applicable to the GMC. However, there is one difference that could be significant in a case of this kind. The GPhC is obliged by its Fitness to Practise Rules to notify registrants when a allegation is referred to its Investigating Committee. Unlike the GMC, the GPhC is not required by its Fitness to Practise Rules to notify a registrant when a complaint is received. However, under its publication and disclosure policy, the GPhC does notify registrants of the receipt of a complaint unless doing so would prejudice an investigation. Perhaps, in the light of the tragic case of Dr Suresh, this policy should be reconsidered.