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	England and Wales High Court (King's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Suresh & Ors v General Medical Council [2025] EWHC 804 (KB) (03 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/KB/2025/804.html Cite as: [2025] EWHC 804 (KB)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/04/2025

This judgment was handed down remotely at 10:30am on 3 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. - - - - - - - - - - - - - - - - - - - - - MARCUS PILGERSTORFER KC DEPUTY JUDGE OF THE HIGH COURT

Marcus Pilgerstorfer KC (Deputy Judge of the High Court):

A. Introduction

1. The General Medical Council ("GMC") is the statutory body charged with investigating and, where appropriate, prosecuting doctors whose fitness to practise is called into question. This case raises whether, in relation to the timing, manner and content of a communication to a doctor that an investigation is to be conducted:

i) the GMC falls under a duty at common law to the doctor concerned to take reasonable care to avoid foreseeable psychiatric injury or suicide; and

ii) the GMC is 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 6 and 7 of the Human Rights Act 1998 ("HRA").

2. The case was presented to the Court as an opportunity to review a number of past cases in light of the Supreme Court's decision in Robinson v Chief Constable of West Yorkshire Police [2018] AC 736, and applying the framework outlined there, to consider whether a duty of care is owed by a regulator in respect of its initial notification of an investigation.
3. The issues arise in the context of an application made by the GMC, dated 12 April 2024, seeking an order striking out the claim pursuant to Civil Procedure Rules 1998 ("CPR") rule 3.4, or alternatively summarily dismissing the claim pursuant to CPR rule 24.3.
4. When considering the legal questions that arise on this application, it is important not to overlook the human tragedy at the heart of this case. On 2 May 2018, Dr Sridharan Suresh ("Dr Suresh"), a Consultant Anaesthetist with a distinguished and unblemished professional record, 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. As I shall explain in more detail below, the GMC did so because it 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. It is right to record that the identification evidence given to the police by the complainant was inconsistent with the perpetrator being Dr Suresh. A decision was ultimately taken that there was insufficient evidence to give rise to a realistic prospect of conviction. Dr Suresh has never been found to have committed this offence.
5. This judgment is structured as follows:

Section	Paragraphs
Introduction	[1] to [5]
The Pleadings and the Procedural Background	[6] to [20]
Strike Out and Summary Judgment: Legal Principles	[21] to [31]
The GMC and Relevant Statutory Provisions	[32] to [57]
The Evidence	[58] to [127]
The Negligence Claim	[128] to [228]
The Human Rights Claim	[229] to [265]
Conclusion	[266] to [267]

B. The Pleadings and the Procedural Background

6. On 28 September 2022, proceedings were commenced against the GMC by Dr Suresh's widow (Dr Visalakshmi Suresh) and two children (Mukunth and Tharun Suresh). The Particulars of Claim, dated 22 January 2023, plead claims in negligence and under the HRA and concern the events surrounding the notification to Dr Suresh on 2 May 2018 by the GMC that he was to be the subject of a fitness to practise investigation.

Negligence

7. In negligence, it is alleged that in carrying out its statutory function as regulator, and by carrying on its fitness to practise procedures, the GMC owed to Dr Suresh, as a registrant, a duty to take all reasonable care to avoid acts or omissions which might foreseeably cause him psychiatric injury and to take all reasonably practicable steps to avoid or minimise the risk of psychiatric injury to him (see §36 of the Particulars of Claim).
8. At §33 of the Particulars of Claim, under a heading "Foreseeability", the Claimants plead that the GMC knew or should have known the following:

"33.1 doctors undergoing FTP procedures are at increased risk of psychiatric injury and suicide;

33.2 anaesthetists are at higher risk of suicide than other doctors;

33.3 the risk of psychiatric injury and suicide is increased where:

33.3.1 a doctor is excluded from work;

33.3.2 a doctor faces "multiple jeopardy", i.e. investigations by more than one organisation such as the GMC, the Police, Social Services and the doctor's employer;

33.3.3 a doctor faces allegations of sexual assault on a child which would have devastating effects on his career, his professional and personal relationships and his family;

33.4 the content and tone of the GMC correspondence is a factor which is likely to contribute to the risk of psychiatric injury;

33.5 the risk of suicide and/or of psychiatric injury is not confined to those doctors who are known to be mentally ill, and it can be those who are thought to be coping who are most at risk."

9. At §34 the Claimants plead that accordingly, the GMC knew or should have known that Dr Suresh was at risk of psychiatric injury, irrespective of any outward indication of a problem or vulnerability.
10. At §35 the Claimants plead further concerning the GMC's knowledge:

"The Defendant further knew or should have known (whether following inquiry or otherwise) that:

35.1 at the relevant times, a doctor interviewed by the Police as a voluntary attendee would not undergo a risk assessment, such that no reassurance could be obtained from the fact that the Police did not identify a risk of psychiatric injury or suicide;

35.2 it is and at all relevant times was usual for the Police, when investigating a doctor for an offence of this nature, to refer the doctor to the GMC;

35.3 there were indications of vulnerability on the part of the Deceased which would have been revealed if enquiries had been made of the Trust, including the following:

35.3.1 on 11 April 2018 the Deceased was visibly upset;

35.3.2 on 16 April 2018, following a meeting with the Deceased, Dr Dwarakanath was significantly concerned about the Deceased's well being;

35.3.3 on 30 April 2018 the Deceased told Ms Greaves about the stress he was under and that he was suffering from disturbed sleep."

11. Under the heading "Breach of Duty" the following allegations appear (§37):

"The GMC, its employees or agents were in breach of the duty of care which they owed to the Deceased in that they:

37.1 failed to recognise or take account of the fact that the Deceased faced a foreseeable risk of psychiatric injury, in light of the matters set out at paragraphs 33 to 35 above;

37.2 failed to take any or any adequate steps to avoid or minimise the risk of psychiatric injury by:

37.2.1 seeking to ascertain whether the Deceased had been made aware of the GMC referral, either by the Police or the Trust or otherwise;

37.2.2 seeking to ascertain whether any risk assessment for psychiatric injury, self harm or suicide had been undertaken by the Police, and if so, what was the outcome of the same;

37.2.3 seeking to ascertain whether any measures were in place to support and protect the Deceased on receipt of the referral notification from the GMC;

37.2.4 liaising with the Trust (whether through Dr Dwarakanath or otherwise) in relation to the referral, the investigation, and the available support and protection for the Deceased;

37.2.5 using the GMC's 'FTP suicide tool' to handle the interaction with the Deceased more sensitively;

37.2.6 modifying the tone and/or content of the letter of 2 May 2018, in particular so as to:

37.2.6.1 make it clear that the GMC had not concluded that the allegations were well-founded;

37.2.6.2 avoid informing the doctor that "we've identified some areas of good medical practice that have been called into question"; and

37.2.6.3 clarify the basis on which other employing organisations would be contacted and the information which would be provided; and

37.3 in the premises, exposed the Deceased to a foreseeable risk of injury."

12. It is then pleaded that the alleged breaches of duty caused or made a material contribution to psychiatric injury on the part of Dr Suresh, and that this led to his suicide (see §38).

Human Rights Act 1998

13. The Claimants' HRA claim is pleaded from §39 of the Particulars of Claim as follows:

"39. The GMC is and was at all relevant times a public authority for the purposes of the Human Rights Act 1998 ("HRA").

40. For the reasons set out at paragraphs 33 to 35 above, the GMC knew or should have known that the Deceased was at a real and immediate risk of suicide.

41. The GMC had a positive obligation to protect the Deceased from violations of his right to life in accordance with Article 2 ECHR. The failures set out at paragraph 37 above accordingly amount to violations of the Deceased's right to life under Article 2 ECHR. Those violations caused the Deceased to lose a substantial chance of avoiding harm.

42. The Claimants are victims of the said violations, each having close personal and familial relationships with the Deceased."

Defence

14. The GMC denied the claims in its defence of 22 February 2023.
15. In respect of negligence, 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, or the alleged, risk of psychiatric injury or suicide. Accordingly, the Claimants' case on foreseeability was denied. The GMC further denied the existence of a duty of care between a regulator and a person being investigated. Breach and causation were also denied.
16. In respect of the HRA claim, the GMC denied that it knew, or ought to have known, that Dr Suresh was at real and immediate risk of suicide. It was further denied there was any breach of Article 2 ECHR.

The Application

17. The GMC's application contends the claims are bound to fail because:

i) The GMC does not owe a common law duty of care to individual doctors under investigation.

ii) The pleaded facts and evidence taken at their highest are not capable of establishing that Dr Suresh's suicide was (a) reasonably foreseeable and/or (b) caused by the alleged breaches of duty.

iii) The claim under Article 2 ECHR was bound to fail because the "operational duty" does not apply to regulatory investigations, and the pleaded facts and evidence taken at their highest are not capable of establishing that the GMC knew, or ought to have known, of a "real and immediate" risk to life.

18. At the hearing, the GMC did not pursue the causation points arising under (ii)(b) above.
19. Two orders of the Court ensured that the case was prepared for the hearing of this application: see order of Master Thornett of 14 November 2023, and of Sweeting J of 16 October 2024. Those orders required the parties to give disclosure on the issues of (i) whether a duty of care arises in law on the basis of the matters pleaded in the Particulars of Claim, and (ii) whether the Defendant was in breach of any duty of care owed at common law and/or under Article 2 ECHR; and for them to exchange witness statements of fact on those issues. This material was compiled into a bundle for the hearing of 1197 pages along with a bundle of additional material of 75 pages.
20. Before Sweeting J an issue was ventilated concerning the admissibility of the expert report prepared by Professor Jenny Shaw, Consultant Forensic Psychiatrist (dated 8 April 2024) who had been instructed by the Claimants^[1]. The parties helpfully reached agreement that the report should formally be admitted for the purpose of this application, but that its relevance would be the subject of submissions. I granted permission to the Claimants to adduce the report accordingly.

C. Strike Out and Summary Judgment: Legal Principles

21. The parties were agreed as to the legal principles that fall to be applied on this application. They are as follows:

Strike Out

22. By CPR rule 3.4(2)(a):

"The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim"

23. This rule is supplemented by Practice Direction PD3A, which at paragraph 1.2(3) provides as follows:

"1.2 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):

…

(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant."

24. Paragraph 1.5 of the same Practice Direction continues:

"1.5 A party may believe they can show without a trial that an opponent's case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the interpretation of a document). In such a case the party concerned may make an application under rule 3.4 or apply for summary judgment under Part 24 (or both) as they think appropriate."

25. In Barrett v Enfield London Borough Council [2001] 2 AC 550, Lord Brown-Wilkinson explained (557F-G):

"…in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out."

26. This passage from Barrett was applied in Richards (t/a Colin Richards & Co) v Hughes [2004] EWCA Civ 266, [2004] PNLR 35. There, Peter Gibson LJ held that where "pleadings show significant disputes of fact between the parties going to the existence and scope of the alleged duty of care" the court must be "certain" that the claim is bound to fail in order to strike it out: see [22].
27. The requirement of certainty means that where there are material issues of fact which require determination on live evidence, it will generally be inappropriate to strike out: see, for example, Bridgeman v McAlpine-Brown (19 January 2000), unreported, CA (the issue there concerned whether it was the defendant or his wife who was the driver responsible for a road traffic accident).
28. However, as the Supreme Court recently observed in HXA v Surrey County Council [2024] 1 WLR 335, where the legal principles governing an area of law have become settled, it can be right to strike out. There, the Court held the relevant principles were settled by N & another v Poole Borough Council [2020] AC 780. Where pleadings "do not disclose circumstances giving rise to a duty of care, the waste of costs inherent in an unnecessary full trial on breach and causation can be sensibly avoided": see [102-4].

Summary Judgment

29. The Court's power to grant summary judgment is contained in CPR rule 24.3:

"The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if—

(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial."

30. There is a helpful summary of the principles which the Court should apply set out in the judgment of Lewison J (as he then was) in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 39 (Ch) at [15]^[2]:

"The correct approach on applications by defendants is, in my judgment, as follows:

i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91;

ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];

iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman;

iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10];

v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."

31. With those principles in mind, I turn to the material placed before the Court concerning the GMC and the evidence underpinning the claims.

D. The GMC and Relevant Statutory Provisions

The GMC and Investigation of Fitness to Practise

32. The GMC is a body corporate established by section 1(1) of the Medical Act 1983 ("the Act") having the functions assigned by that Act. Within the Act, the GMC is referred to as "the General Council". An "over-arching objective" of the GMC in exercising its functions is the protection of the public: see section 1(1A). By section 1(1B):

"The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives –

(a) to protect, promote, and maintain the health, safety and well-being of the public,

(b) to promote and maintain public confidence in the medical profession, and

(c) to promote and maintain proper professional standards and conduct for members of that profession."

33. In addition to maintaining a register of medical practitioners^[3] (see section 2 and Parts II and III of the Act), the GMC is charged with investigating the fitness to practise of those on the register (see Part V of the Act) and an Investigation Committee is established for that purpose: see section 1(3).
34. Section 35C sets out the functions of the Investigation Committee. It applies where an allegation is made to the GMC against a registered practitioner "that his fitness to practise is impaired": s35C(1). Impairment can arise as a result of any of the matters set out at s35C(2). Amongst other things, that list includes criminal convictions, other misconduct, and deficient professional performance.
35. Guidance is published by the GMC concerning the meaning of fitness to practise. At the material time^[4], this was in the form of The meaning of fitness to practise (2015) and a guide to the standards and behaviour expected of all doctors: Good Medical Practice (2013). A further guidance document, GMC Thresholds (2018), explained at §§15-6 that allegations of "sexual assault or indecency" were cases that were likely to meet the threshold to be referred to the GMC.
36. Returning to section 35C, once an allegation is made to the GMC, by section 35C(4) of the Act:

"The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Medical Practitioners Tribunal."

37. This duty to investigate also arises where it comes to the attention of the GMC that a person's fitness to practise is called into question but no allegation has been made: see s35CC(3) of the Act.

Initial Consideration of an Allegation under the Rules

38. The GMC is empowered by the Act to make Rules concerning how investigations are conducted: see paragraph 1 of Schedule 4. It has done so in the form of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 ("the Rules"). The Rules cover investigation (Rules 4-12) and adjudication (Rules 17-42).
39. By Rule 4(1) an allegation is initially considered by the Registrar. Joanna Farrell, Assistant Director of Investigations at the GMC, explains in her witness statement that in practice this initial consideration is conducted by the Assistant Registrar with delegated authority. Nonetheless, I shall refer to the Registrar, adopting the language of the Rules.
40. Under Rule 4, the Registrar will consider whether the allegation falls within section 35C(2), viz whether it raises an issue of impaired fitness to practise. If it does not, then by Rule 4(2A) the Registrar must notify the maker of the allegation accordingly. The Registrar will also consider the age of the allegation. If the most recent events giving rise to the allegation occurred more than five years before the allegation is first made, or comes to the attention of the GMC, the matter shall not proceed unless the Registrar considers it is in the public interest (Rule 4(5)). Finally, the Registrar will consider whether the allegation is vexatious. If the Registrar considers the allegation should not proceed on that ground, s/he must notify the practitioner and maker of the allegation: Rule 4(3)(c). Subject to these rules^[5], and the power to carry out appropriate prior investigations^[6], by Rule 4(2) the Registrar must refer the matter for investigation:

"…where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8."

41. Operational guidance prepared by the GMC entitled Criminal Offences (2018) states that the Assistant Registrar:

"…may promote the enquiry for investigation in the following circumstances:

Doctor is aware of the police investigation, the allegation is serious^[7] and the police investigation is progressing

The circumstances indicate that an interim order may be required

…

The offence in question meets the triage threshold

The police have disclosed information which enables the [Assistant Registrar] to understand the offence under investigation, including a brief summary of underlying circumstances (this will inform a subsequent IOT decision)

Police are content for the information provided by them to be used in our investigation and to be disclosed to the doctor."

Rule 7 Disclosure to the Doctor

42. Once an allegation is referred for consideration under Rule 8, a duty under Rule 7(1) is triggered. Rule 7 is headed "Investigation of allegations" and provides:

"(1) As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner –

(a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired;

(b) providing him with copies of any documents received by the General Council in support of the allegation;

(c) inviting him to respond to the allegation with written representations within the period of 28 days from the date of the letter; and

(d) informing him that representations received from him will be disclosed, where appropriate, to the maker of the allegation (if any) for comment."

43. In her statement, Ms Farrell suggested that in practice, at the start of the investigation, when complying with Rule 7(1)(b), the GMC would not be able to "fully particularise" the allegation and send all the evidence gathered during the investigation, and hence full disclosure occurs in practice at the end of the fitness to practice investigation process. Be that as it may, the Rule is drafted in mandatory terms and requires the GMC, as soon as is reasonably practicable, to write to the practitioner with the matters set out in (a) to (d) as far as they are known at that time, even if they fall to be supplemented at a later date. Ms Farrell confirmed that it is the GMC's policy to disclose to the doctor the fact of the investigation and information about the nature of the complaint or referral as soon as reasonably practicable following the decision to commence an investigation. She referred to the GMC's guidance Initial doctor disclosure (2018) which supported this:

"When allegations pass the Rule 4(2) threshold for consideration under Rule 8, we must inform the doctor concerned…we must carry out disclosure to the doctor under Rule 7(1) of our fitness to practise rules. We also carry out this process at final disclosure".

44. The same guidance has a section at 2C headed "Delaying disclosure". After referring to delay in order to avoid prejudice to an ongoing criminal or quasi-criminal investigation, the guidance states:

"Disclosure may be delayed if the doctor has health issues requiring us to hold off on our correspondence, or deliver through a nominated contact."

Investigation and Rule 8 Consideration

45. By Rule 7(2):

"The Registrar shall carry out any investigations, whether or not any have been carried out under rule 4(4), as in his opinion are appropriate to the consideration of the allegation under rule 8."

46. Rule 8(1) then requires an allegation referred by the Registrar under rule 4(2) to be considered by the Case Examiners. The Case Examiners, if unanimous, may decide the allegations should proceed no further, or to issue a warning, or to refer the allegation to the Committee, or to refer the allegation to a Medical Practitioners Tribunal: see Rule 8(2). They may also recommend the practitioner be invited to comply with undertaking: Rule 8(3). If they are not unanimous, Rule 8(5) provides for a referral to the Committee.

Obtaining information about, and disclosure to, Employers etc

47. Section 35A(2) of the Act requires the GMC to obtain details from a practitioner subject to investigation as follows:

"As soon as is reasonably practicable after the relevant date, the General Council shall require, from a practitioner whose fitness to practise is being investigated, details of any person –

(a) by whom the practitioner is employed to provide services in, or in relation to, any area of medicine; or

(b) with whom he has an arrangement to do so."

48. The "relevant date" is determined by reference to the Rules: see section 35A(3). Rule 13 provides that it is the earliest of a number of events. Materially these include:

"(a) the decision of the Registrar to carry out investigations under Rule 7(2);

(b) the referral of an allegation to the MPTS for them to arrange for it to be considered by an Interim Orders Tribunal;

(c) the referral of an allegation for consideration by the Case Examiners under rule 8;"

49. Ms Farrell explains that this duty is discharged by the GMC requiring a doctor to complete a 'work details form' which is enclosed with the initial disclosure letter.
50. The GMC is also under a duty, pursuant to section 35B(1) of the Act, to notify any person who employs the practitioner to provide medical services, or any person with whom the practitioner has an arrangement to do so, of the investigation "as soon as is reasonably practicable after the relevant date". Ms Farrell explains in her statement that this will include the Responsible Officer of the doctor, who in the context of an NHS Trust, is usually a senior doctor (such as the Medical Director): see the Medical Profession (Responsible Officers) Regulations 2010. The GMC's guidance Employer disclosure (2018) provides that disclosure to a Responsible Officer may take place "once we are satisfied that the doctor has had sufficient time to receive the disclosure, typically 7 days".

Interim Orders

51. By section 1(3)(i) of the Act, the GMC must establish one or more Interim Orders Tribunals. Rule 6 provides as follows:

"If, at any stage, the Registrar is of the opinion that an Interim Orders Tribunal should consider making an interim order in relation to a practitioner, he shall refer the allegation to the MPTS for them to arrange for it to be considered by such a Tribunal accordingly."

52. Rule 8(6) also allows the Case Examiners, where they are of the opinion that an Interim Orders Tribunal should consider making an interim order, to direct the Registrar accordingly.
53. The GMC had a number of operational guidance documents concerning when a referral should be made, including: Interim Orders Tribunal: Referral Criteria (2015), Guidance on Referral to an Interim Orders Tribunal (Case Examiner Guidance) (2016), and Interim Orders: Operational Guidance (2018). The first of those documents summarises the position as follows:

"Cases should be referred to the Interim Orders Tribunal (IOT) where the doctor faces allegations of such a nature that it may be necessary for the protection of members of the public, or otherwise be in the public interest or in the interest of the doctor, for the doctor's registration to be restricted whilst the allegations are resolved."

Amongst the example allegations "illustrative of cases which, depending on all the circumstances may require referral to the IOT" are "indecent assaults" (see §4, §7). The guidance states the point at which the referral would take place is flexible and depends on individual circumstances (§10).

54. Where a case is to be considered by an Interim Orders Tribunal, Rule 26 of the Rules provides:

"Prior to the initial or any review hearing relating to an interim order, and within such time before the hearing as is reasonable in the circumstances of the case –

(a) the Registrar shall -

(i) set out the reasons why it is necessary to make or review an interim order,

(ii) provide a copy of any written evidence obtained by the General Council which is relevant to the question of whether or not an interim order should be made or reviewed, and

(iii) in relation to a review hearing, provide a copy of the order to be reviewed; and

(b) the MPTS shall serve a notice of hearing on the practitioner [specifying matters set out at (i) to (vi) including the date, time and venue of the hearing]."

55. At a hearing the Interim Orders Tribunal applies the test set out in section 41A of the Act, namely whether:

"it is necessary for the protection of members of the public, or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions".

56. The Tribunal may make no order, or may make an order (for up to 18 months) imposing interim conditions or suspending the doctor's registration on an interim basis. Before making such an order, by section 41A(8):

"No order under subsection (1) or (3)(b) to (d) above shall be made by a Tribunal in respect of any person unless he has been afforded an opportunity of appearing before the Tribunal and being heard on the question of whether such an order should be made in his case."

Outcomes

57. Ms Farrell's evidence includes some statistics on outcomes for 2018. In that year, there were 8,546 initial triage decisions under Rule 4. Of these, 1,402 cases were promoted to a full investigation (i.e. 16.4%). Of those cases, the outcome of the Case Examiners' Rule 8 decisions were as follows: 63.4% were concluded with no action or concluded with advice; 23.2% were referrals to a Medical Practitioners Tribunal hearing; 7.7% were concluded with the agreement of undertakings; and 5.7% were concluded with a warning.

E. The Evidence

58. The Court was presented with a relatively full evidential picture in documentary form. I shall summarise that position below. There was little dispute between the parties concerning the facts that emerged, however it is important to emphasise that what follows are not findings reached after hearing evidence. In that vein, Mr Hyam KC, who appeared for the Claimants leading Ms Webb, reminded me that I should not assume that the statements gathered were the 'last word' on the facts.

Dr Suresh

59. Dr Suresh was a highly respected consultant anaesthetist employed by the North Tees and Hartlepool NHS Trust ("the Trust") working at the University Hospital of North Tees. In addition, he had a private practice at the Grace Dental Practice and several other private hospitals. Dr Suresh was married to Dr Visalakshmi Suresh, the First Claimant, and had been for some 20 years. The couple had two children, Mukunth and Tharun, who are the Second and Third Claimants.
60. Dr Visalakshmi Suresh's evidence was that her husband was at the height of his career, with an outstanding record of performance and that he had worked very hard for his achievements and his position meant a lot to him. In their evidence, his colleagues (Drs Aslam, Brohi and Francis) speak in similarly positive terms about his professional and personal qualities. There was no dispute before me that Dr Suresh had an exemplary record.
61. Dr Visalakshmi Suresh stated that her husband "had no background of medical or mental health issues, and was not on any regular medication". Professor Shaw's report confirms that there are no medical records of relevance and that Dr Suresh's GP had confirmed there were no chronic medical conditions and he was not on medication (Report §§3.29-30).

March 2018: The Complaint of Sexual Assault

62. On 29 March 2018, a complaint was made to the police of a sexual assault following a dental procedure conducted at the Grace Dental Practice. It was alleged to have occurred on 26 March 2018. In her statement for the coroner, DS Amy Campbell of the Cleveland Police confirmed a first account was taken from the complainant, followed by an 'Achieving Best Evidence' video interview on 31 March 2018. The complainant alleged that after a dental procedure two males had been present: the alleged offender (who had put the cannula in her hand) and the dentist. She described a sexual assault. She provided a description of the alleged offender which is extracted in the Claimants' letter of claim:

"Olive skin colour wearing glasses and a black/navy blue surgical suit (pinny). He was in his 40s to 50s with black greying bushy hair which was not styled. This male also had a beard which was scraggly and had grey bits."

63. It was Dr Suresh's position, and is the Claimants' position, that this description simply does not apply to Dr Suresh. The Claimants' letter of claim describes him in the following terms:

"Dr Suresh was Indian and had a dark complexion. As an anaesthetist, he did not wear a surgical suit during dental procedures. He did not wear glasses, his hair was short and he did not have a beard."

3 April 2018: Police Interview

64. On 3 April 2018, the Suresh family returned from a family holiday in the early hours of the morning. Dr Suresh later went to work as normal, but unusually did not contact his wife all day (it was her birthday).
65. That day the police made contact with the Grace Dental Practice and ascertained that Dr Suresh had been the anaesthetist on duty on 26 March 2018. Officers made contact with the Trust and attended upon Chris Tulloch, Deputy Medical Director. Chris Greaves, General Manager Anaesthetics, was identified to act as an independent management support officer for Dr Suresh.
66. DC Harris and DC Lee, then spoke with Dr Suresh. After outlining the allegation, they described him as "quite upset", "shocked", and "visibly shaking". Arrangements were made for Dr Suresh to attend the police station for interview, which he did voluntarily with a solicitor. He answered all questions and denied the allegation. At this point DC Harris found him no longer to be visibly shaking and considered he gave no indication he needed emotional support or counselling. Dr Suresh was released under investigation.
67. After the interview, Ms Greaves telephoned Dr Suresh offering him support through Occupational Health, but this was declined. Due to the nature of the allegation the police referred the case to social services. DS Hodgson telephoned Dr Visalakshmi Suresh at around 6pm to undertake immediate safeguarding checks and it was agreed no unsupervised contact would take place between Dr Suresh and his youngest son.
68. That evening, Dr Visalakshmi Suresh described being able to see the stress and shock on her husband's face. He told her that he had been suspended from work and had a very difficult interview with the police. He did not share the details of the allegation.

Early April 2018: Suspension

69. On 4 April 2018, Dr Suresh spoke to Ms Greaves by telephone and was again offered Occupational Health support, which he declined. Social services became involved and the family was told their son's school would be informed of the allegation. Tharun was told that he should not be with his father on his own. Dr Visalakshmi Suresh described her husband as being "devastated" at his reputation being tarnished in front of his children, not being able to spend time with his younger son alone, and information being shared with the school. She described him as "grief stricken".
70. On 9 April 2018, Helen McDonald, Workforce Business Partner at the Trust, contacted Dr Suresh to enquire about his welfare and to let him know that she and Dr Dwarakanath, the Trust's Medical Director, would like to meet him. In her statement for the coroner she says Dr Suresh declined additional support saying that he was receiving all that was needed.
71. On 11 April 2018 Dr Suresh was told he would be suspended for an initial 2 week period. Dr Dwarakanath told him the Trust was fully supporting him and not investigating him. Helen McDonald described Dr Suresh as being "visibly upset" and that she and Dr Dwarakanath were "concerned about his health and well-being", albeit not that he was experiencing a mental health crisis. Dr Dwarakanath told the coroner he "encouraged Dr Suresh to accept the offer to refer him to Occupational Health" but it was declined by Dr Suresh who felt it "was not necessary at that time". Dr Suresh was given details of Alliance Counselling Services. The suspension was later confirmed by letter of 12 April 2018.
72. Also on 11 April 2018, Dr Suresh sent his wife a text at 10.05am saying "call me when you can, good news only". She says she called him and found him to be "excited and relieved" as the Trust had been supportive and put him on a forthcoming rota. This caused him to be "very positive and buzzing with energy" over the next few days. Subsequently, Dr Suresh told his wife that he had been told by the police that it had been decided that there was no case to answer and no referral would be made to the Crown Prosecution Service ("CPS").
73. During April 2018, Dr Suresh opened up to select colleagues about the allegation. Dr Brohi states that he was initially "visibly upset and in a state of disbelief" when he did so, but in subsequent conversations in April 2018, he appeared better. Dr John Francis, Clinical Director for Anaesthetics, and Dr Suresh's line manager, says he spoke to Dr Suresh 3-4 times after his suspension and had lengthy chats about the allegations. He explains Dr Suresh felt he was being judged and publicly shamed without evidence and was "clearly distressed". Dr Francis' statement indicates Dr Suresh was isolated at the time and although an Occupational Health referral was discussed, it was refused because Dr Suresh was worried it could lead to further rumours.

16 April 2018: Police referral to the GMC

74. On 16 April 2018, DS Campbell notified the GMC by email that the police were investigating Dr Suresh. The email explained:

"The circumstances of the allegation are that the complainant is a 15 year old female who attended Grace Dental (private dental practise located within the grounds of North Tees University Hospital, however the doctor is registered and does practise within the North Tees and Hartlepool NHS Trust hospitals) on 26/03/18. She attended in relation to a planned extraction under sedation.

The complainant alleges that following the procedure, she was escorted to the recovery room by the anaesthetist who when alone with her in the recovery room stroked her bottom and then went on to put his hand inside her t-shirt and touched the top of her breast. He then left the room and the complainant's father was allowed to join her in the recovery room.

SURESH has been interviewed voluntarily under caution at Middlesborough Police Station on 03/04/18. He has denied any sexual contact with the complainant.

The trust have been informed and SURESH is currently under suspension while this investigation is concluded.

There are a number of lines of enquiry still to be conducted in relation to this investigation, this is ongoing."

75. In her statement for the coroner, DS Campbell confirmed that during a telephone call with Chris Greaves and Lisa Johnson (Workforce Business Manager at the Trust) on 16 April 2018, she updated them about the investigation and told them a GMC referral had been made. This was not disputed by Ms Johnson and Ms Greaves. Ms Johnson accepted that had she been tuned into the issue of a GMC referral, she would have raised it with Dr Dwarakanath. DS Campbell stated she was told the Trust was meeting with Dr Suresh that afternoon and were offering him welfare support.
76. Ms Johnson explained to the coroner that on the 16 April 2018, she and Dr Dwarakanath met with Dr Suresh. She described him as being "anxious and concerned" about the allegation and struggling to understand how he had been identified given the description given by the complainant. He spoke of the impact of the allegation and how difficult it had been personally and professionally, and how he was thinking about leaving the Trust and the country once his name had been exonerated because of his loss of trust in the system. He spoke of his belief that the police were to drop the allegations against him. Ms Johnson went on to state:

"Dr Dwarakanath asked how Dr Suresh was coping with his health and well-being. Dr Suresh advised that he was able to sleep more. Dr Dwarakanath outlined his concern that during previous meetings and telephone call exchanges, he was significantly concerned about Dr Suresh's well-being although there was never any concerns around an acute mental state or thoughts of self-harm; he described to Dr Suresh that he was still concerned despite Dr Suresh's reassurance that he was ok. Dr Dwarakanath outlined that extended support was available from both internal Trust services and external sources and that whilst Dr Suresh had declined this previously, he strongly encouraged him to reconsider accessing these and his own GP."

77. Details of a Local Authority Designated Officer ("LADO") meeting the following day were shared with Dr Suresh and tentative arrangements were discussed for a return to work, dependent on the police investigation.

17 April 2018: GMC Initial Consideration and LADO Meeting

78. On 17 April 2018, the GMC considered the referral and made the following record:

"The doctor is currently suspended by his Trust. He has denied all allegations. We have had no referral and the doctor has not yet made any self-referral to the GMC (but he has not yet been charged). It is not felt appropriate for an allegation of failure to advi[s]e the GMC to be added for Decision at this time.

These are serious allegations of misconduct which, if proven, may require action on the doctor's registration. Although the doctor has not yet been charged the allegations are of a sufficiently serious nature – and involve a minor – that the matter should be promoted for Criminal Conviction investigation now. This has been discussed with Heather Cowap who has agreed to take the case.

This matter is therefore promoted accordingly."

79. The LADO meeting took place on 17 April 2018. Attendees included the police (DS Campbell), the Trust (Ms Johnson and Ms McDonald) and social services. The minutes show that the police stated they had submitted a referral to the GMC the day before and outlined the state of the investigation. The impact of the sedation and the description given by the complainant were discussed. DS Campbell explained to the coroner that she learned during the meeting that Dr Suresh had been telling the Trust that the police investigation was complete. She told the meeting that was not the case and said he would be contacted to correct this impression. Social services indicated there would be no action if there was no action by the police. The Trust informed the meeting that the Medical Director would be updated and suspension would remain in place. The minutes record:

"[Helen McDonald] said there were concerns about [Dr Suresh's] welfare, it was discussed that support was in place. It was confirmed that [Helen] would be the point of contact for the Police at the hospital."

80. Helen McDonald accepted before the coroner that she did not share details of the GMC referral with anyone else in the Trust having assumed the police would have told Dr Suresh about it. She accepted it would have been appropriate for her to have escalated the information to Dr Dwarakanath. Dr Dwarakanath in his statement for the coroner also accepted that the information should have been escalated to him so that he could have discussed it with Dr Suresh as his Responsible Officer^[8]. Both Ms McDonald and Dr Dwarakanath told the coroner that this is now the process followed at the Trust. Further, Dr Dwarakanath said in his statement, at §25:

"If I had been informed of the timing of the GMC referral I would have made immediate personal contact with Dr Suresh to inform him of this; advised that we had not instigated the referral and remained entirely supportive. I would have explained the length of time the GMC take to investigate a case, six months plus, together with the legalistic nature of their correspondence. We would continue to support him fully with regular calls, meetings, offers of occupational health and counselling services. These support mechanism were already in place for Dr Suresh but would have been reiterated had I been aware that the GMC referral had been made."

81. In the afternoon of 17 April 2018, at around 2pm, DC Davidson rang Dr Suresh and provided him with an update of the investigation which she said had not yet concluded. DC Davidson gives an account of asking how Dr Suresh was and him replying "OK". She describes Dr Suresh acknowledging that things could take some time. Ms Greaves also telephoned Dr Suresh at 6.09pm on 17 April 2018. She says Dr Suresh told her about the call with DC Davidson. Ms Greaves informed Dr Suresh that she was attending a meeting the following day to review his exclusion.

18 April 2018: GMC Case Plan; Decision to Extend Suspension

82. On 18 April 2018, Heather Cowap, GMC Investigation Manager, made a case plan. This included obtaining information about any previous convictions, and monitoring the judicial process to conclusion. In relation to Interim Orders, the following was recorded: "As Dr has been interviewed by police & this is against a patient who is a minor immediate [case examiner] IOT decision required".
83. At 5pm on 18 April 2018, Dr Suresh received a call from Ms McDonald informing him that his suspension was being extended and that he should attend a meeting the following day to discuss. Ms McDonald states that she reoffered occupational health support during the conversation, but she did not mention the GMC referral. Dr Visalakshmi Suresh was with her husband when that call came in and she describes him as being "shattered at the news". That evening Dr Suresh called his friend Dr Vijay Jagannathan to request him accompany him to the meeting and he agreed.

19 April 2018: GMC Email to the Police; Meeting with Trust to discuss Suspension

84. On 19 April 2018, Elise Marsden, an Investigation Adviser at the GMC (assisting Ms Cowap) replied to DS Campbell confirming that the information had met the threshold to open up an investigation into Dr Suresh's fitness to practise. The email explained that the GMC would await the outcome of any judicial process before proceeding to an investigation. The email then turned to the issue of interim orders and explained:

"I understand that Dr Suresh has been suspended from North Tees University Hospital however that would not stop him from seeking work through a locum agency. The initial step for our investigation is to disclose the material you have provided to the doctor to make him aware of our investigation. We cannot send a doctor for an IOT hearing if we have not disclosed our investigation to them.

So could I please ask that you let me know immediately if you have any objections to us disclosing your email to Dr [redacted] If you would prefer that we do not disclose your referral email then please provided me with an alternative summary in an new email to disclose to Dr [redacted]."

85. Also on 19 April 2018, Dr Suresh attended a meeting at the Trust to discuss his ongoing suspension. Helen McDonald told the coroner that Dr Suresh was informed that the hope was that the ongoing police investigation would result in a report within 2 weeks. In the meantime, Dr Suresh was told that his suspension would need to continue but should be regarded as a neutral act. Alternatives to exclusion were discussed, but Dr Dwarakanath explained that he felt that it was not possible to put in place adjustments without compromising confidentiality due to the nature of the allegations made. This was accepted by Dr Suresh and Dr Jagannathan. Dr Suresh was told the Trust would not commence an internal investigation until the police investigation was completed, but that an internal investigation team had been appointed to avoid delay if that was later deemed necessary. Dr Dwarakanath told the coroner that Dr Suresh was informed that a referral would be made to NCAS (National Clinical Assessment Service) in line with usual practice. Dr Dwarakanath said that Dr Suresh was asked for permission to make a referral to Occupational Health but Dr Suresh declined "insisting he was well and receiving support from family and friends".
86. There has been some suggestion that at this meeting Dr Suresh was told by the Trust that there would be no referral to the GMC. Dr Visalakshmi Suresh's second statement to the coroner (when describing the conversation I deal with in the following paragraph) states "He was assured by the Trust that police would not be referring this matter to the CPS unless they found substantive evidence to support the allegation. He was also assured that there was no plan to involve the GMC", but this is not included in her statement for these proceedings, nor did it form an allegation within the Particulars of Claim (see especially at §22). Dr Dwarakanath's and Ms McDonald's statements for the coroner do not suggest that such an assurance was given. Dr Jagganathan's statement^[9] for the coroner was not placed before the Court on this application.
87. When he returned home, Dr Suresh told his wife that his exclusion from work would be extended but that he could return when the case against him had been closed. She describes him as being disappointed at this news and noticed his anxiety and stress kept going up each day the exclusion continued. He stopped eating properly and lost around 6-7kg. She says he stopped going to social events and became more isolated.

Late April 2018

88. By 28 April 2018, the police investigation was almost complete. A further statement from the stepfather of the complainant was required, but that was the final action required before submitting the file to the CPS.
89. On 30 April 2018, Dr Suresh was contacted by Ms Greaves of the Trust. According to Dr Dwarakanath's statement for the coroner Dr Suresh said he had been keeping busy exercising and helping with his children's homework. He expressed concern the police investigation was still ongoing and told Ms Greaves that he was worried and waking up during the night. After that contact, Dr Suresh told his wife that they were still waiting for news from the police. She said he was "increasingly anxious" at this stage and "desperate" to hear from the police that they had concluded the investigation. Dr Suresh tried to call the police that day, but was unable to make contact.

1 May 2018: Initial Email from the GMC

90. It appears that shortly after 11.16am on 1 May 2018, the Police confirmed to Elise Marsden at the GMC that there were no objections to disclosing the information in the referral to Dr Suresh^[10]. At 1.06pm, Ms Marsden wrote by email to Dr Suresh as follows:

"I am writing today on behalf of the General Medical Council.

I have some confidential information to disclose to you and would be grateful if you could confirm if this email address is an appropriate point of contact.

For security reasons, please could I also ask you to confirm your GMC UID Number and the post code of your registered home address.

I look forward to hearing from you in due course."

91. Ms Marsden also sent the case to a Case Examiner to decide whether a referral to an Interim Orders Tribunal was necessary.
92. At 1.20pm, Dr Suresh sent a text to Dr Aslam asking if there was "any news from Lindsey?", that being a reference to DC Davidson. Later, at 2.51pm, Dr Suresh responded to the GMC's email confirming his email address and giving the required security information. He also provided his mobile telephone number.
93. That evening, Dr Suresh told his wife about the email. She said the email "came as a complete shock to my husband, and he was very upset and worried about it… he had been expecting the police case against him to be closed but he felt that this was a very big problem". She described him as being "completely lost in his thoughts". She recalls conversations with him that evening during which he explained that in the previous 27 days he felt his character had been assassinated and that colleagues were gossiping. He felt isolated and defamed as a father and in the eyes of society. Dr Visalakshmi Suresh tried to reassure him, however he was very concerned about the email from the GMC and that all his professional hard work could be lost if there was a GMC investigation which could last years and delay his return to work.
94. Dr Visalakshmi Suresh explained to the coroner that Dr Suresh indicated that even absent a GMC referral, he no longer was interested in working for the Trust. He said he wanted to clear his name and resign and move to London or elsewhere for work. In her statement, Dr Visalakshmi Suresh states that she and her husband spoke late into the night about the family's financial affairs and their children's futures. She said he explained the finances to her and gave her guidance on applying for new jobs she should seek. She said this was unusual as he normally handled the family's financial affairs. When they did go to bed, Dr Visalakshmi Suresh recalls Dr Suresh barely slept and that the email from the GMC had impacted him immensely.

2 May 2018: Communication from the GMC about the Investigation

95. On 2 May 2018, Dr Suresh had breakfast with his wife and son. He said he was going to call the police that day (but in the event did not do so). He also said he was going to complete some appraisal paperwork albeit he was concerned how the allegation would impact it. Dr Visalakshmi Suresh states to the Court that during the morning her husband expressed many hopes for the future and was forward planning. However, when she left for work she thought Dr Suresh looked worried. In a statement for the coroner at §17, she dealt with this further:

"Before I left for work I could see that my husband was worried. In my previous statement I have stated that that morning when I left for work, my husband was his usual self and did not show signs of distress. I had written that statement not long after my husband had taken his own life and I was not explaining myself well. What I meant was that although he was clearly distressed, I had not realised that he was so distressed that he would take his own life. Had I known this I would have never left him".

96. After she left, Dr Suresh was at home on his own. The evidence shows he telephoned his elder son who was at university at 8.53am and at 10.34am sent an email to Wendy Thomson of Human Resources at the Trust about continuing medical education points.
97. Between 11am and 12noon, Dr Suresh called Dr Brohi at work to discuss work rotas. He asked if Dr Brohi would complete his appraisal and Dr Brohi said they would sit down after the police investigation was over and he was back at work. Dr Brohi describes the interaction as completely normal, and Dr Suresh did not mention GMC correspondence.
98. At 12.55pm, Dr Visalakshmi Suresh called her husband. They spoke about whether he had eaten lunch and whether he had heard anything from the GMC. Dr Suresh told her she would be the first to know if he did hear from them. At 1.12pm, Dr Suresh telephoned his elder son.
99. Meanwhile, during the morning of 2 May 2018, the GMC Case Examiner had returned the decision to Ms Marsden that a referral to an Interim Orders Tribunal was necessary in the interests of patient safety. It was recognised that the information available was limited and investigations were at an early stage, but weight was attached to the fact the allegation was particularly serious and if substantiated would suggest a risk to patients. Ms Marsden obtained a date for an Interim Orders Tribunal hearing and prepared an initial letter to Dr Suresh.
100. The communication was sent to Dr Suresh by Ms Marsden by email at 2.05pm on 2 May 2018. The covering email introduced Ms Marsden as Dr Suresh's point of contact and referred to an attached letter that was also to be sent via post. The covering email asked for a work details form and an email notification form to be returned by 9 May 2018. The email also stated:

"I understand that this might be a stressful time, so if you have any questions regarding this letter please contact me directly and I will be happy to help."

101. The enclosed letter explained that a referral from Cleveland Police had been received about "alleged sexual contact with a patient" and attached a copy of the referral. The letter informed Dr Suresh that an investigation into his Fitness to Practise had been opened and that Elise Marsden would be responsible for managing it. The letter stated:

"I know that receiving this letter and being involved in this process is a stressful experience. I hope you understand after reading the information provided that we need to open an investigation to make sure there are no ongoing risks to patients, as our role is to protect the public. We are keen to work with you to resolve this as quickly as possible."

102. The letter continued that the GMC wanted to find out more information to see if it was correct that Dr Suresh's fitness to practise medicine was potentially impaired. It explained the next step was to write to Dr Suresh's employing organisations to inform them of the investigation and to ask for information to help about the investigation. It asked for the work details form to be returned by 9 May 2018.
103. The letter explained that sharing relevant information early in the process could help make the investigation quicker and stated that Dr Suresh could send any comments he wanted the GMC to consider by 30 May 2018. Areas of potential comment were outlined, including "[w]hether you agree with the information we have received". Dr Suresh was advised to contact his medical defence organisation or the British Medical Association.
104. The letter then turned to Interim Orders and explained that a Case Examiner had reviewed the information available and had decided that Dr Suresh should attend before an Interim Orders Tribunal. A copy of the referral was attached. The date and time of the hearing was outlined and Dr Suresh was provided with information about the powers of the tribunal and where to find more information. A bundle of documents considered by the Case Examiner and to be considered by the Interim Orders Tribunal was enclosed. The procedure for making written submissions ahead of the hearing was outlined.
105. The letter concluded by stating:

"We understand that being under investigation can be stressful and we will try our best to finish our investigation as soon as possible. Please contact your investigation adviser Elise Marsden if you have any queries".

106. Enclosed with the letter was:

i) the Decision to refer to an Interim Orders Tribunal;

ii) a guide for doctors reported to the GMC;

iii) a Doctors Support Service leaflet - this document gave details of a service providing "dedicated confidential emotional support to any doctor involved in a fitness to practise case". Telephone and email contact details were included;

iv) Imposing Interim Orders – Guidance for the IOT and MPT;

v) Information for doctors whose cases are due to be heard by an Interim Orders Tribunal;

vi) work details form;

vii) email notification form; and

viii) documents to be presented to the Interim Orders Tribunal.

107. At 3.22pm on 2 May 2018 Dr Suresh messaged Dr Jagannathan informing him that things were "getting serious" and that the police had written to the GMC and he had been asked to appear for their investigation and to disclose all the places he does work. He sent a similar message at the same time to Dr Aslam. At 3.23pm, Dr Suresh also forwarded to Dr Jagannathan a copy of the email he had received from the GMC.
108. Dr Aslam replied saying "Please get advice from [Dr Jagannathan], everyone is jumping the gun before the conclusion of investigation. [DC Davidson's] phone gone straight to answer service". Dr Jagannathan replied saying it was serious, and that Dr Suresh needed to get Premium Medical Protection involved. At Dr Suresh's request he agreed to call him after his list.
109. At 3.52pm, Dr Suresh left the family home. At 4.25pm he sent an email to his wife from his iPhone. The email denied he had done anything wrong. Dr Visalakshmi Suresh only saw this email many days later. She returned home from work at 6pm on 2 May 2018 to find her son alone. She tried to call her husband but to no avail. She then called Dr Jagannathan who said he was coming to the house. When Dr Jagannathan arrived, he told her that her husband had died. The police later arrived and confirmed that Dr Suresh's body had been found in the River Tees.

Subsequent Correspondence

110. On 3 May 2018, Dr Jagannathan emailed the GMC to inform them that Dr Suresh had died. Ms Cowap responded confirming that the Interim Orders Tribunal and further correspondence would be halted. The GMC later followed its procedures for closing down an investigation after notification of the death of the practitioner concerned.
111. Prior to that exchange, the GMC had sent a letter to Dr Dwarakanath at the Trust informing him of the investigation and asking for information. At around noon, Ms Cowap telephoned Dr Dwarakanath to confirm Dr Suresh's death. Dr Dwarakanath expressed his unhappiness that Dr Suresh had been notified about the investigation before he (as Responsible Officer) had been told. He considered that prevented him putting support in place. He followed this up in writing on 21 May 2018. Ms Farrell responded on behalf of the GMC on 6 June 2018 indicating a significant event review would be conducted but:

"We would not typically inform a doctor's responsible officer that we are opening an investigation, before we disclose this to the doctor in question. If we have serious concerns about a doctor's health we will consider different ways to make the initial disclosure; this could include contacting a treating psychiatrist or their GP to discuss the best method of discussing the decision with the doctor.

We were not made aware of any concerns regarding Dr Suresh's health or potential vulnerability in this matter and therefore we were not able to take any additional steps to provide further support."

112. Dr Dwarakanath responded on 12 June 2018 expressing disappointment with the response. He stated:

"For any doctor, a letter from your organisation is the worst possible event in their career. They have a significant impact on all; even on those without a mental health issue. Therefore, all Medical Directors should be informed by the GMC PRIOR to letters being sent out. This will enable trusts to be able to forewarn you of any mental health issues."

113. At the time of that correspondence, Dr Dwarakanath was not aware that a number of individuals at the Trust had in fact been made aware of the GMC referral by the police on 16 and 17 April 2018. Those individuals were Chris Greaves, Lisa Johnson and Helen McDonald.
114. A further letter followed from Ms Farrell dated 20 July 2018 stating that the GMC were aware of the impact letters have on doctors. "We have recently provided an update to responsible officers and the profession on the extensive work [we are] undertaking to reduce stress on doctors following the Appleby review."

Police and IOPC Investigations

115. On 3 May 2018, DC Simon Clark of the Directorate of Standards and Ethics ("DSE") of Cleveland Police was appointed to carry out an independent investigation into the death of Dr Suresh. A referral to the Independent Office for Police Conduct ("IOPC") was made, but that office decided the matter could be dealt with by the local DSE. An investigation report was completed on 30 July 2018 and the IOPC confirmed agreement with the findings on 16 August 2018. It was determined that Dr Suresh had been provided with appropriate safeguarding and support by police whilst he was being investigated and there was no indication that Dr Suresh was considering killing himself. DC Clark concluded there was little more police could have done to prevent Dr Suresh from taking his own life. The report did note that as Dr Suresh attended for interview as a voluntary attendee, no risk assessment was carried out as it would have been had he been arrested. The report expressed the view that the standard risk assessment should be implemented for all voluntary attendees in the future, but that even if it had been carried out in this case, it would not have prevented Dr Suresh's suicide.
116. In the meantime, on 9 May 2018, it was recorded in relation to the underlying police investigation into the incident of 26 March 2018 that there was insufficient evidence to provide a realistic prospect of conviction.

Coroner's Inquest and GMC Significant Event Review

117. A coroner's inquest was held on 25 – 27 February 2020. The cause of death was recorded as suicide. In a letter of 9 March 2020, the Coroner wrote to the GMC asking it to implement actions in two areas for development:

"1) In cases where referrals to the GMC are made by the police,

a) The GMC should contact the Police as soon as they are able to and ask if they are aware whether the Doctor is vulnerable or has welfare issues.

b) The GMC should ask the Police as soon as they are able to whether the Doctor's Employer is aware of the referral. In the event that the Employer is aware of the referral the GMC should contact the Employer to enquire whether the Doctor is vulnerable or has any welfare concerns.

2) In the first email sent to a Doctor from the GMC there should be an invitation to the Doctor to telephone the GMC if they are feeling vulnerable or have any welfare concerns. This would then give the GMC the ability to undertake an initial risk assessment and consider appropriate support."

118. The GMC confirmed these actions had been implemented by letter to the Coroner of 3 April 2020. On 23 June 2020, Stephanie Pollitt, Head of National Investigation at the GMC issued her Significant Event Review report into Dr Suresh's death. No deviations from GMC practice were identified, nor areas where internal GMC processes or handling was contrary to guidance. Under a heading 'Actions' the GMC's Employer Liaison Advisors ("ELAs") were asked to remind all Responsible Officers to flag any vulnerability concerns with them at the point that a referral or when a referral is likely, and not to give inaccurate reassurance to doctors. The report also recorded action had been taken as raised by the Coroner.

Reducing the Impact of the Fitness to Practise Process

119. In its evidence before the Court the GMC recognised that by their very nature fitness to practise investigations can have an impact on and be stressful for doctors under investigation. The evidence shows that the GMC has taken a number of steps over the years preceding Dr Suresh's death to understand the issue better, and put in place measures to ameliorate the position.

Doctors Support Service

120. In May 2012, the GMC commenced a pilot Doctors Support Service to provide confidential emotional support to doctors being investigated. This pilot was evaluated and implemented from December 2014. As I have set out at paragraph 106 above, the correspondence with Dr Suresh on 2 May 2018 enclosed a leaflet providing information about this support service.

Horsfall Review

121. In 2014, the GMC commissioned Sarndrah Horsfall, previously Chief Executive for the National Patient Safety Agency in the UK, to conduct a review. Her report, Doctors who commit suicide while under GMC fitness to practise investigation was provided on 14 December 2014. The report covers a wide territory and it is not necessary to consider all aspects for the purposes of this judgment.
122. The report recorded that "a wealth of research" suggested that doctors had higher rates of mental health problems when compared with other occupational groups. It also referenced studies suggestive of a higher rate of suicide among doctors/health professionals compared to the general population, but with variability between medical specialities. A number of additional risk factors were identified as affecting doctors, including the 'multiple jeopardy' that can arise from several investigative processes (criminal, regulatory, employment etc) taking place at the same time and over a long period.
123. The review found that the GMC had made significant improvements in the fitness to practise process, including in the way it corresponded with doctors (by, for example, reducing legal language and being more sensitive in the way letters are worded). Nonetheless, concerns emerged that the organisation remained process driven, and once a case was deemed to merit further investigation, there was no way of stopping or shortening the enquiry period. Many respondents felt judged and 'guilty until proven innocent'. The extent of the legal demands of the process was also commented upon. The problem of doctors receiving multiple letters dated the same day or around the same time was also highlighted, as well as occasions where over a significant period there would be no communication at all. The tone of letters was referred to, including the views of doctors that it was accusatory, overly negative and judgmental and clearly written from a legal perspective. Timescales were found to differ considerably between cases and whilst it was recognised the GMC was not responsible for delays due to the criminal process, the length of time the GMC takes to complete investigations was identified as a problem and a source of stress. The review commented positively about Doctors Support Service but recognised some doctors would not always want to telephone.
124. Nine recommendations were made both for the GMC and its stakeholders. The first concerned the GMC investigation process. It recommended that the GMC creates an environment where doctors going through a fitness to practise investigation feel they are treated as 'innocent until proven guilty'. The need to conduct investigations quickly and compassionately was underscored, taking into account legal constraints and the need to protect patients. It was recognised that the GMC was reviewing its triage process in order to progress only those cases requiring a full and comprehensive investigation. The recommendation was that this be implemented as soon as possible, and a review undertaken from a doctor's standpoint. This would include minimising and streamlining the timing and quantity of correspondence; officers being as sensitive as possible, mindful of the impact of the investigation on the individual; and maintaining contact (including by telephone) during the process. Ms Horsfall wrote:

"Any doctor referred to the GMC should be considered to be vulnerable and therefore supported and assisted in a compassionate manner. Given the stress of the investigation process, it is possible any doctor could develop mental health problems or an addiction habit as the very nature of the investigation process creates significant stress and mental anguish."

Appleby Review

125. In 2015, the GMC took forward this work by appointing Professor Louis Appleby, a leading mental health expert from the University of Manchester, to assist it reduce the impact of its investigatory role. This resulted in 10 key aims and 28 proposals for improvement being identified. Proposals included making mental health a strand running through the GMC's work; strengthening the Responsible Officer role, supported by GMC Employer Liaison Advisors ("ELAs"); providing guidance for staff on signs a doctor may be unwell; avoiding unnecessary investigations; speeding up processes; improving the content, number and timing of communications through a single point of contact; promotion of support services; increasing awareness of the investigation process and dispelling misconceptions; and improving information gathered about deaths of doctors subject to investigations.
126. All 28 proposals were agreed by the GMC Strategy and Policy Board in July 2016. The 'Supporting vulnerable doctors' programme (consisting of 27 projects) was then established. These projects were largely complete by May 2018^[11] and were summarised in a report entitled Supporting vulnerable doctors programme – Changes to better support doctors under investigation (2020).

Other work

127. Ms Farrell explained in her statement that the GMC has undertaken the following additional work:

i) The GMC reviewed the content and tone of its letter writing in 2012, 2015 and 2017. In 2015, Anna Rowland, Assistant Director of Policy and Business Transformation explained that, amongst other things, the changes acknowledged "the stress that being under an investigation can bring" and increased the emphasis on the confidential support available from the Doctor Support Service, and where doctors could obtain legal and other support. The changes also ensured a neutral tone was used "to provide reassurance that we have not come to a view about what happened until the appropriate point in our process". Ms Farrell explained that the letter sent to Dr Suresh benefitted from these changes.

ii) The GMC provide training around emotional resilience and mental health to all GMC staff. In 2016 a guidance document was issued Lines to take – handling interactions with doctors, patients, complainants and witnesses where there is a risk of suicide and self-harm and the contents were embedded into an interactive desktop tool called FTP Suicide policy tool. These documents provide staff with guidance and advice on what to say and how to access support when staff encounter an individual who expresses suicidal feelings, or an intention to self-harm. The guide differentiates between high, medium and low risk. The high and medium risk categories apply when an individual has expressed suicidal feelings (differentiating between those in the process of harming themselves or with a plan from those without a plan). The low risk category applies where "a caller has expressed feelings of distress but does not have a plan to take their own life". Further guidance was developed in October 2017 entitled Guidance for staff on recognising signs a doctor may be unwell and pausing an investigation (2017) and Guidance for staff on requesting specialist handling advice during the course of an investigation (2017). An eLearning module Interacting with vulnerable doctors was also rolled out in October 2017.

F. The Negligence Claim

128. In light of the above, I turn to examine the issues raised on the application in relation to the Claimant's claim in negligence.

The Duty Issue

129. I have approached my task by considering the question of whether a duty of care arises on the assumption, in the Claimants' favour, that it can be shown that psychiatric harm to Dr Suresh, or his suicide, was a foreseeable consequence of a notification by the GMC that he was to be the subject of an investigation. I shall return to the foreseeability issue thereafter.
130. It is helpful at the outset to set out a broad overview of the parties' respective positions. It is the GMC's case that the claim should be struck out, or summarily dismissed, because it cannot be established that the GMC owed to Dr Suresh a duty of care. In support of that submission, Mr Forde KC, leading Mr Mant, counsel for the GMC, submit that the appropriate starting point for the Court is to consider established principles in existing case law. Mr Forde argued that there was no authority which supported the proposition that the GMC owed a duty of care at common law to a registered doctor when carrying out its fitness to practise functions, and to impose one would not be an incremental step, but a quantum leap. He referred to numerous authorities which he submitted establish that public authorities undertaking investigations or prosecuting proceedings in the public interest do not owe a duty of care to persons under investigation based on the foreseeability of psychiatric harm. Further, he argued that even outside that context, the circumstances in which a duty of care is imposed to prevent suicide, self-harm or psychiatric injury is limited. Mr Forde argued that these established principles provide a simple answer in the present case, and, as Lord Reed explained in Robinson, it was not necessary to apply a tripartite test deriving from Caparo Industries plc v Dickman [1990] 2 AC 605. That said, and relying on [42] of Robinson, he submitted that should the court consider that established principles do not provide a clear answer on the duty question, the court will have to consider whether it is fair, just and reasonable to impose the duty of care and at that point policy considerations would still have a role to play in the analysis. He argued that, as recognised in the past cases, there are compelling reasons why recognising a duty of care would have a chilling effect on regulators undertaking their duties, and that the duties contended for in this case are not practicable in view of the number of investigations the GMC has to contend with.
131. Mr Hyam KC and Ms Webb invited the Court to take a somewhat different approach. They submitted that in Robinson and Poole the Supreme Court had reinterpreted many of the key negligence decisions relating to public service liability, identifying as a key concept for analysis the distinction between acts which cause harm and the failure to confer a benefit or protect from harm. Mr Hyam submitted that the pre-Robinson cases, including their reliance on public policy considerations, require re-interpretation in light of Robinson and Poole. He argued that public policy arguments had been overplayed, and sought to demonstrate that such concerns could point the other way: see the majority judgments in the Canadian case of Hill v Hamilton Wentworth Regional Police Services Board [2007] 3 SCR 129 (Can). He argued that just as the police officers did in Robinson, the GMC through a positive act caused harm when it notified Dr Suresh of the investigation into his fitness to practise. He submitted that there was a pre-existing proximate relationship because Dr Suresh was registered by the GMC as a doctor. It was submitted that the case falls, or at least arguably falls, into the category where a duty of care is owed in principle and the case should proceed to trial.
132. I have structured my analysis as follows. First, I consider the "clearer framework" established by the Supreme Court in a number of recent cases. Next, I consider the issues in this case by reference to that framework and applicable general principles. Third, I consider the pre-existing line of cases relied on by Mr Forde in light of the Supreme Court's analysis in Robinson. Finally, I pull the threads together and reach my conclusions.

A Clearer Framework

133. In a quartet of cases starting with Robinson, and continuing with Poole, HXA and Tindall v Chief Constable of Thames Valley Police [2024] 3 WLR 822, the Supreme Court revisited the liability of public authorities in the tort of negligence and reinterpreted a number of the central authorities in order to provide a "clearer framework"^[12].
134. To borrow the words of Lord Leggatt and Lord Burrows in their judgment in Tindall at [1], at the heart of that framework the Supreme Court

"…firmly established (or re-established^[13]) that the liability of public authorities in the tort of negligence to pay compensation is governed by the same principles that apply to private individuals."

135. It is those common principles that fall to be applied to cases coming before the Court. That exercise can require a degree of adaptation of the reasoning given in some of the older authorities owing to "shifting approaches by the highest court": see Poole at [25] and [34].
136. When doing so, one must avoid the error of reading Lord Bridge's judgment in Caparo as though it established a tripartite test to be applied in all cases. In Robinson at [21], Lord Reed rejected as "mistaken" the proposition that

"there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts".

137. His Lordship explained that concerns about containing liability following the decision in Anns v Merton London Borough Council [1978] AC 728 led to a retreat where emphasis was placed on the concept of "proximity" and on the idea that it must be fair to impose a duty of care on the defendant: see [22-3]. He continued at [24]^[14]:

"In the Caparo case [1990] 2 AC 605, Lord Bridge of Harwich noted that, since the Anns case, a series of decisions of the Privy Council and the House of Lords, notably in judgments and speeches delivered by Lord Keith of Kinkel (including his speech in Hill v Chief Constable of West Yorkshire [1989] AC 53), had emphasised "the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope": p 617. It is ironic that the immediately following passage in Lord Bridge's speech has been treated as laying down such a test, despite, as Lord Toulson JSC remarked in Michael's case, the pains which he took, at pp 617–618, to make clear that it was not intended to be any such thing:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope." (Emphasis added by Lord Reed)

138. As Lord Reed then explained, Lord Bridge in Caparo endorsed "an incremental approach, based on the use of established authorities to provide guidance as to how novel questions should be decided": see [25]. Accordingly, at [26-7] and [29], Lord Reed reasoned:

"26… Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority). Nor, a fortiori, can justice and reasonableness constitute a basis for discarding established principles and deciding each case according to what the court may regard as its broader merits. Such an approach would be a recipe for inconsistency and uncertainty…

27. It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Following the Caparo case, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgement in those circumstances that involves consideration of what is "fair, just and reasonable". …

29. Properly understood, the Caparo case thus achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable. In the present case, however, the court is not required to consider an extension of the law of negligence. All that is required is the application to particular circumstances of established principles governing liability for personal injuries."

The Distinction between Causing Harm and Failing to Confer a Benefit

139. In the Robinson line of cases, the Supreme Court explained that, as is the case with private individuals, generally public bodies do not owe a duty to confer benefits on individuals, such as protecting them from harm: Robinson [34], Poole [28]. Sometimes this is put as a distinction between imposing liability for acts rather than pure omissions, however the preferred distinction is between "causing harm (making things worse) and failing to confer a benefit (not making things better)" (Poole [28]; HXA [48]).
140. There are, however, well established exceptions to the principle. Again these are applicable both to private individuals and public bodies. One example is where a public body assumes responsibility for an individual's safety on which the individual has relied. Another example is where the public body has created the source of danger which would not otherwise have existed, or was in a position to control the source of danger, such as was the case in Dorset Yacht Co Ltd v Home Office [1970] AC 1004: see Robinson [37], Poole [28], HXA [88], Tindall [38], [44(v)] [79].
141. Returning to the distinction itself, in Robinson two police officers attempted, in the course of their duties, to arrest a suspected drug dealer in a town centre resulting in a struggle which knocked over a relatively frail lady aged 76 causing her injury. This was considered by the Court to be a positive act, not an omission: [73], [82], [122]. It was unlike previously decided cases in which the police had failed properly to investigate and arrest a murderer before a potential future victim was killed, or to respond to an emergency call in time to save a victim from an attack. Given that it was reasonably foreseeable that if the arrest was attempted when pedestrians were close they might be knocked into and injured, a duty of care towards the pedestrians in the immediate vicinity of the arrest was imposed. The police owed a duty to take care just as a private person would.
142. In Tindall, the Supreme Court examined how the distinction between making matters worse and failing to confer a benefit fell to be drawn through the lens of six decided cases, including Robinson: see from [21]. It summarised the central principles emerging from that review at [44]:

"(i) There is a fundamental distinction, drawn in all the above cases, between making matters worse, where the finding of a duty of care is commonplace and straightforward, and failing to confer a benefit (including failing to protect a person from harm), where there is generally no duty of care owed.

(ii) An example of the former (making matters worse), where there was held to be a duty of care owed by the police, is Robinson [2018] AC 736. As regards other emergency services, a more difficult example is the Hampshire case in Capital & Counties [1997] QB 1004 (turning off the sprinkler system^[15]). All the other cases mentioned fell on the other side of the line.

(iii) A difficulty in drawing the distinction (between making matters worse and failing to protect from harm) is how to identify the baseline relative to which one judges whether the defendant has made matters worse: see Sandy Steel, "Rationalising Omissions Liability in Negligence" (2019) 135 LQR 484, 487. The cases show that the relevant comparison is with what would have happened if the defendant had done nothing at all and had never embarked on the activity which has given rise to the claim. The starting point is that the defendant generally owes no common law duty of care to undertake an activity which may result in benefit to another person. So it is only if carrying out the activity makes another person worse off than if the activity had not been undertaken that liability can arise.

(iv) Another way of stating the general rule is to say that a person owes a duty to take care not to expose others to unreasonable and reasonably foreseeable risks of physical harm created by that person's own conduct. By contrast, no duty of care is in general owed to protect others from risks of physical harm which arise independently of the defendant's conduct—whether from natural causes (as in East Suffolk [1941] AC 74) or third parties (as in Michael [2015] AC 1732 and Ancell [1993] 4 All ER 355)."

The Statutory Context

143. Of course there is often a difference between a public authority and a private person because the former is afforded statutory or other public law powers and/or is subject to such duties. In some cases, this feature is of little relevance to the imposition of a duty of care. Thus police officers driving police vehicles owe a duty of care just as any other driver does: see Robinson at [47] and the reference to Marshall v Osmond [1983] QB 1034. On the facts of Robinson itself, whilst the police had powers of arrest and were subject to duties to investigate and prevent crime^[16], and although the officers were in the course of making an arrest, they were still subject to a duty to take care not to harm pedestrians nearby.
144. However, in other cases, this feature can be important. Lord Reed referred to this in Poole at [31-2], by reference to the House of Lords decisions in Stovin v Wise [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057:

"31. … as explained by Lord Hoffmann [in Stovin v Wise] in a speech with which the other members of the majority agreed,… "In the case of positive acts, therefore, the liability of a public authority in tort is in principle the same as that of a private person but may be restricted by its statutory powers and duties" (p 947: emphasis in original)." In relation to failures to perform a statutory duty, Lord Hoffmann stated at p 952 that:

"If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed.""

145. That passage makes it clear that the potential liability of a public authority in negligence can be restricted by relevant statutory powers and duties, including for positive acts. Lord Reed made a similar point in Robinson when explaining that since the reasoning in Anns v Merton had been repudiated, the need to have regard to public policy considerations to justify the rejection of liability had been superseded: see Robinson [40] – [42]^[17]. In particular, at [41]-[42] he said this:

"41. Equally, concerns about public policy cannot in themselves override a liability which would arise at common law for a positive act carried out in the course of performing a statutory function: the true question is whether, properly construed, the statute excludes the liability which would otherwise arise: see Gorringe's case [2004] 1 WLR 1057, para 38, per Lord Hoffmann.

42. That is not to deny that what might be described as policy considerations sometimes have a role to play in the law of negligence. As explained earlier, where established principles do not provide a clear answer to the question whether a duty of care should be recognised in a novel situation, the court will have to consider whether its recognition would be just and reasonable."

146. The Supreme Court returned to this issue in Poole when examining D v East Berkshire Community Health NHS Trust [2004] QB 558 (CA) and [2005] 2 AC 373 (HL). There, claims were brought by parents who had been accused (falsely as it turned out) of abusing or injuring their children by doctors and social workers. They alleged this resulted in harm of various kinds (including in one case alleged psychiatric injury).
147. In D, the Court of Appeal had considered a number of previous authorities, including X (Minors) v Bedfordshire County Council [1995] 2 AC 633, which concerned claims against local authorities relating to their functions under child care legislation and as education authorities. The Court of Appeal expressed the view that it would no longer be legitimate to rule that no common law duty of care could be owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. The position was different in respect of claims by the parents. This result was upheld by the House of Lords.
148. In Poole, Lord Reed observed as follows [54]:

"Although a duty of care might be owed to the child, the court considered that the position of the parents was different. In view of the potential conflict between the best interests of the child and the interests of the parents, there were in the court's view cogent reasons of public policy for concluding that, where child care decisions were being taken, no common law duty of care should be owed to the parents. Another way of expressing the point would have been to say that the imposition of a common law duty of care towards the parents would be inconsistent with the statutory framework, since it would interfere with the performance by the authority of its statutory powers and duties in the manner intended by Parliament." (Emphasis added)

149. When his Lordship returned to D at [75] he said this:

"…in cases such as Gorringe [2004] 1 WLR 1057, Michael and Robinson [2018] AC 736 [2018] AC 736 the House of Lords and this court adopted a different approach (or rather, reverted to an earlier approach) to the question whether a public authority is under a duty of care. That approach is based on the premise that public authorities are prima facie subject to the same general principles of the common law of negligence as private individuals and organisations, and may therefore be liable for negligently causing individuals to suffer actionable harm but not, in the absence of some particular reason justifying such liability, for negligently failing to protect individuals from harm caused by others. Rather than justifying decisions that public authorities owe no duty of care by relying on public policy, it has been held that even if a duty of care would ordinarily arise on the application of common law principles, it may nevertheless be excluded or restricted by statute where it would be inconsistent with the scheme of the legislation under which the public authority is operating. In that way, the courts can continue to take into account, for example, the difficult choices which may be involved in the exercise of discretionary powers." (Emphasis added)

150. A very helpful exposition of this principle can be seen in the Court of Appeal's judgment in Desmond v Chief Constable of Nottinghamshire Police [2011] PTSR 1369. There a negligence claim seeking financial loss, stress and anxiety was advanced in respect of the actions of a chief constable providing information to the criminal records bureau about the claimant. This had been done so that the bureau could respond to a request for an enhanced criminal record certificate made because the claimant was applying for a job. There was a statutory duty on the chief constable to provide information as was in his opinion relevant and ought to be included in the certificate. The criticism was that the chief constable had made an error of judgment in deciding that certain information was relevant and should be included. It had resulted in the job offer being lost.
151. Giving the judgment of the Court, Sir Anthony May P set out the relevant principles that applied from [38]ff. I extract this section of the judgment in full:

"38. A statutory power cannot of itself generate a common law duty of care: see East Suffolk Rivers Catchment Board v Kent [1941] AC 74 and the Gorringe case [2004] 1 WLR 1057, para 41. Whether a statutory duty gives rise to a private common law cause of action is a question of construction of the statute. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for its breach. If the statute does not create a private right of action, it would be unusual, to say the least, if the mere existence of the statutory duty could generate a common law duty of care. The existence of a broad public law duty alone can scarcely give rise to a common law duty of care owed to an individual.

39. The common law should not impose a concurrent duty which is inconsistent, or may be in conflict with, the statutory framework. If the policy of the statute is not to create a statutory liability to pay compensation, the same policy should also ordinarily exclude the existence of a common law duty of care. Lord Scott put the essential principle for statutory duties as follows in the Gorringe case, at para 71:

"if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty."

40. There may be special circumstances in which a public authority has assumed an obligation to a claimant to act in a particular way. But if Parliament stops short of imposing a private law duty in favour of individuals, sufficiently compelling special circumstances are required, beyond the mere existence of the duty or power, to make it fair and reasonable to impose a duty to an individual of a scope to be derived from the special circumstances. There may be particular cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities such that they are taken to have assumed responsibility to a claimant so as to give rise to a common law duty of care.

41. Factors to be taken into account include the subject matter of the statute and the intended purpose of the statutory duty or power; whether a concurrent private law duty might inhibit the proper and expeditious discharge of the statutory functions; whether such a duty would expose the authority's budgetary and other discretionary decisions to judicial inquiry; the ability of the claimant to protect himself; and the presence or absence of a particular reason why the claimant was relying or dependent on the authority. If there is reliance, it may easily lead to the conclusion that the authority can fairly be taken to have assumed responsibility to act in a particular way. But reliance alone is usually not enough. Some statutory duties or powers are less susceptible to a concurrent common law duty than others. The law does not favour blanket immunity. See for these propositions Lord Nicholls (who dissented in the result) in Stovin v Wise [1996] AC 923, 937c - 938e. In the present case, we consider that the modified core principle to be derived from the Hill case [1989] AC 53 (see above) is relevant, but arguably not of itself determinative.

42. There are cases where a public authority may be held liable for breach of a duty of care on what Lord Hoffmann in Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, para 38 referred to as a solid, orthodox common law foundation, where the question is not whether it is created by a statute, but whether the terms of the statute are sufficient to exclude it. He gave as an example a hospital trust providing medical treatment pursuant to a public law statutory duty, but where the existence of a common law duty was based simply on its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. Barrett v Enfield London Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619 are examples of cases where, upon a longer analysis, public authorities acting under statutory powers were held in principle vicariously liable for alleged breaches of duty by their child care, health or education professionals. The professionals themselves arguably owed the children a duty of care, and the employing local authority was prima facie vicariously liable if the professional was in breach of that duty. On the other hand, health care and child care professionals employed by statutory authorities do not normally owe a duty of care to the parents of children whom the professionals may wrongly allege to have abused their children. The child, not the parent, is the doctor's patient, and the doctor has to be able to act single-mindedly in the child's interest without regard to the possibility of a conflicting claim by the parent: see D v East Berkshire Community NHS Trust [2005] 2 AC 373, para 85, where the factor which Lord Nicholls labelled "conflict of interest" was a major, if not determinative, consideration. Likewise, where action is taken by an authority acting under statutory powers designed for the benefit or protection of a particular class of persons, the authority will not owe a common law duty of care to others whose interests may be adversely affected by the exercise of the power. The imposition of a duty of care might inhibit the exercise of the statutory power and be potentially adverse to the class of person it was designed to benefit or protect, thereby putting at risk the statutory purpose: see Jain v Trent Strategic Health Authority [2009] PTSR 382, where the facts in favour of the imposition of a duty of care were, on one view, very strong.

152. Whilst Robinson included a critique of an earlier part of the judgment^[18], at [66] Lord Reed said in terms that the Court in Desmond had

"…correctly identified the relevant legal principles as being those laid down in East Suffolk River Catchment Board v Kent, Stovin v Wise and Gorringe, and concluded that no duty of care was owed".

153. It is convenient at this point to refer to the decision of the House of Lords in Jain & Another v Trent Strategic Health Authority [2009] 1 AC 853, which was referred to by Sir Anthony May in Desmond in the passage I have cited above. Mr Forde KC placed considerable reliance on this decision.
154. A claim in negligence was brought by Mr and Mrs Jain against the regulator of the care home which they ran. The authority had statutory powers (under section 30 of the Registered Homes Act 1984) to apply for an order cancelling the Jains' registration in respect of the home. The authority exercised that power on the basis of inaccurate information and insinuations and applied to the Magistrates' Court for an order, without giving any notice to the Jains. The order was granted and the home closed. Whilst the order was ultimately overturned on appeal (accompanied by strong criticism of the authority), the appeal was not heard until four months later, by which time the Jains' business had been ruined. The issue for the House of Lords was whether the authority owed the Jains a duty of care in negligence when preparing and making the section 30 application.
155. In his leading judgment, Lord Scott held at [20]:

"In making the application the authority is exercising a statutory power. The purpose of the power is the protection of the residents in the home in question. It might be fair and reasonable to conclude that the authority did owe a common law duty of care to the residents of a nursing home or a care home if conditions at the home warranting the exercise of the authority's statutory powers had come to the authority's attention but nothing had been done. But to conclude that an authority exercising, or deciding whether to exercise, its statutory powers owed a duty of care also to the proprietors of the home seems to me much more difficult."

156. Lord Scott then reviewed a line of authority where the exercise of statutory powers conferred for the protection of a certain class of person could impinge on the interests of others. He considered the case of D v East Berkshire (above) as well as B v Attorney General of New Zealand [2003] 4 All ER 833, M v Newham London Borough Council [1995] 2 AC 633, Harris v Evans [1998] 1 WLR 1285 and Reeman v Department of Transport [1997] 2 Lloyd's Rep 648. He concluded (at [28]):

"This line of authority demonstrates, in my opinion, that 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".

157. His Lordship then reviewed cases relating to the conduct of, or steps taken in preparation for, civil or criminal litigation including Elguzouli-Daf v Commissioner of Police of the Metropolis & Another [1995] QB 335, Brooks v Commissioner of Police of the Metropolis & Others [2005] 1 WLR 1495, Business Computers International Ltd v Registrar of Companies [1988] Ch 229, Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181 and Martine v South East Kent Health Authority (1993) 20 BMLR 51. He concluded at [35]:

"The cases in this second line of authority, including the Martine case 20 BMLR 51, which I regard as having been rightly decided, establish, in my opinion, that where the preparation for, or the commencement of conduct of, judicial proceedings before a court, or of quasi-judicial proceedings before a tribunal such as a registered homes tribunal, has the potential to cause damage to a party to the proceedings, whether personal damage such as psychiatric injury or economic damage as in the present case, a remedy for the damage cannot be obtained via the imposition on the opposing party of a common law duty of care. 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."

158. His Lordship concluded that both of these lines of authority pointed to the conclusion that no duty of care was owed to the Jains. The purpose of the statutory power was to protect the interest of the residents in the nursing homes. The interests of the Jains as proprietors that the homes should remain open were in potential conflict with the interests of the residents. The inadequacy of safeguards in section 30 applications did not justify the creation of a duty of care: see [36-8].
159. Whilst Jain was a case in which the claimants sought financial losses incurred as a result of the closure of the home, it is quite clear that the reasoning was intended to apply equally to cases of foreseeable personal injury, such as psychiatric loss; indeed that was made express by Lord Scott at [35]. Further, contrary to Mr Hyam's submission, I do not regard the reasoning in Jain as confined to cases where the public body in question instigates judicial or quasi-judicial proceedings^[19]. That would ignore the first line of authority considered by Lord Scott.
160. Jain was not referred to in Robinson but was cited with approval by the Supreme Court (a matter of weeks later) in NRAM Ltd (formerly NRAM plc) v Steel & Another [2018] 1 WLR 1190. Lord Wilson referred to it for the proposition that there is an absence of a general duty of care on the part of one litigant towards his opponent.
161. Of further assistance is the analysis of the Supreme Court in respect of the CPS in SXH v Crown Prosecution Service [2017] 1 WLR 1401. After citing Elguzouli-Daf (discussed further below), Lord Toulson explained that ([38]):

"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…"

The Framework and the Present Case

162. How then does this framework apply to the instant case?

The Communication of 2 May 2018 and the Statutory Scheme

163. It is accepted on behalf of the GMC (rightly in my view) that in one respect the claim is founded on a positive act taken by the GMC: the sending to Dr Suresh of the email and letter of 2 May 2018 notifying him of the allegation and investigation into his fitness to practise, requiring him to give details of where and for whom he carries out medical services, and giving notice of the forthcoming Interim Orders Tribunal to be held on 22 May 2018. I agree with Mr Hyam KC's characterisation of this as a positive act in the same way as the acts in Robinson and the Hampshire case in Capital & Counties were positive actions. It is an act which can be alleged to have caused harm to Dr Suresh (to have "made matters worse" adopting the language in the cases) rather than being an allegation that the GMC failed to protect Dr Suresh from harm.
164. This being so, a duty of care in respect of sending that communication cannot be excluded by reference to the omissions principle.
165. As the cases I have discussed demonstrate, the liability of a public authority in tort (including for positive acts) can nonetheless be restricted by relevant statutory provisions setting out the authority's powers and duties. In his submissions Mr Forde KC relied upon the statutory obligations of the GMC to investigate and notify, and submitted these were inconsistent with the imposition of a duty of care.
166. I have set out the relevant provisions of the Act and the Rules made under it. Upon receipt of the referral from the police, by section 35C(4) of the Act, the GMC were obliged to investigate it and decide whether it should be considered by the Medical Practitioners Tribunal. Given that the allegation on its face raised an issue which fell within section 35C(2) – that is to say an issue of potentially impaired fitness to practise, as defined^[20] – under Rule 4(2) the Registrar was obliged to refer the matter for consideration under Rule 8. That, in turn, triggered the obligation under Rule 7(1) to write to Dr Suresh "as soon as reasonably practicable" after the referral for consideration under Rule 8 informing him of the allegation and the other matters set out in Rule 7(1). Section 35A(2) of the Act also obliged the GMC, as soon as was reasonably practicable after the referral under Rule 8, to obtain details of any of person who employed Dr Suresh to provide services in any area of medicine, or with whom he had an arrangement to provide such services. In each case the language of the statutory provision or Rule is mandatory: "shall".
167. In respect of a referral to the Interim Orders Tribunal, Mr Hyam KC observed that there was nothing in Rule 6 or Rule 8(6) which rendered such a referral mandatory, although he accepted that in the sense outlined in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 it could not be said to be outside the range of reasonable decisions to have done so. Clearly, the Rules permit the Registrar or the Case Examiners to form an opinion as to whether an Interim Orders Tribunal should consider making an interim order. That requires the exercise of judgment and consideration, amongst other factors, of whether the protection of the public requires a Tribunal to decide whether or not to place interim restrictions on the doctor. Once that decision had been taken, the Registrar was then obliged, prior to the hearing and within such time before the hearing as is reasonable, to set out the reasons why it was necessary to make an interim order and provide a copy of the written evidence going to the issue of whether an interim order should be made (Rule 26(a)). It was also compulsory that a notice of hearing be served on the practitioner containing the matters set out in Rule 26(b). The Tribunal ultimately could not make an interim order without the doctor concerned having been given an opportunity of appearing before the Tribunal and being heard: section 41A(8) of the Act.
168. The fact that the GMC was obliged by the statutory scheme to send notification of the allegation to Dr Suresh, and to do so "as soon as is reasonably practicable" after the referral for consideration under Rule 8 is, in my view, a highly relevant feature of this case and directly engages with the principles identified above. As has been seen, Lord Reed identified the relevant touchstone as being whether the imposition of a duty of care would be inconsistent with the scheme of the legislation under which the public authority is operating.
169. Mr Hyam KC submitted there would be no inconsistency in the present case. He relied on the recognition of a duty of care in Robinson even though the police were acting in the course of their duties, and relying on their powers of arrest. He submitted that the position here was indistinguishable. I do not accept that submission. It is important to identify precisely what duty was recognised in Robinson: it was a duty towards pedestrians in the vicinity of the arrest to take reasonable care to avoid injuring them when the arrest was attempted: [74]. The Supreme Court considered that duty applied to the police just as it would do for anyone else. For example if the manager of the betting shop had rushed out to return a left-behind item to a departing customer and had carelessly knocked into Mrs Robinson in the process. The statutory powers and duties of the police were not inconsistent with them taking care not to injure pedestrians in the vicinity in the circumstances.
170. The present context is very different. The duty Mr Hyam KC contends for is one that would be owed to Dr Suresh, the doctor who is the subject of an investigation. 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 (see section 1(1A) and s1(1B) of the Act). The GMC must achieve that when it complies with Parliament's requirement that it investigate complaints (section 35C(4) of the Act). 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.
171. 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.
172. One of the allegations advanced in this claim is that the GMC failed to modify the tone and content of the letter of 2 May 2018 (i) to make it clear the GMC had not concluded the allegations were well founded; (ii) to avoid informing Dr Suresh that areas of good medical practice that have been called into question; and (iii) to clarify the basis on which employing organisations would be contacted and the information provided to them (Particulars §37.2.6)^[21]. Whilst the language deployed in the Particulars of Claim is that of omissions, in reality the complaint is about the sending of the letter and its contents. That, as I have explained, is a positive act. But the allegations advanced illustrate why the recognition of a duty of care would cut across the statutory scheme. To take one example, at (ii) above the plea is that the duty of care would extend to avoiding informing the doctor that areas of good medical practice have been called into question. 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" (Rule 7(1)(a) of the Rules). 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.
173. Mr Hyam KC argued that the GMC had a discretion to delay notification to the doctor, or to have notification delivered though a named contact (I have set out the GMC's operational guidance at paragraph 44 above). He submitted that this discretion should be considered in light of the duties of a Responsible Officer under section 45B of the Act and Regulation 11 of the Medical Profession (Responsible Officers) Regulations 2010. Regulation 11(5) imposes a duty of cooperation with the GMC "in connection with the exercise by them of any of their functions under Part 3A or 5 of the Act" (Part 5 being concerned with professional conduct and performance). Thus, he submitted, it was not incompatible with the statutory scheme for a duty of care at common law to require the GMC to take reasonable care to avoid harm to a doctor when deciding how it would communicate the allegation and the fact of the investigation to him.
174. I do not consider that this submission is correct. Even if the GMC had a discretion concerning the precise manner in which it would "write to the practitioner" in compliance with Rule 7(1) or "require from a practitioner" details of employing persons under section 35A(2), it must exercise its powers in accordance with its statutory duties, including those in the overarching objective. The interests of the public and the interests of the doctor are in potential divergence in relation the exercise of that discretion such to make it inconsistent with the statutory obligations to impose a common law duty of care. The position remains materially different from that in Robinson. The police had a discretion concerning how and when to effect the arrest. The Court's decision was not that the duty of care was owed to Mrs Robinson when exercising that discretion; rather the duty of care to the pedestrians in the vicinity arose once the police had made the decision to arrest at the time they did.
175. Mr Hyam made a further submission in reliance on the Supreme Court having reestablished that the same principles concerning the imposition of a duty of care apply to public and private persons. He submitted that had the Trust's Responsible Officer and Medical Director, Dr Dwarakanath, communicated the fact of a GMC referral, he would have owed a common law duty of care to Dr Suresh when doing so. In those circumstances, he submitted, the GMC should not be in a better position. In my judgment, this submission overlooks two critical features. First, that the GMC is subject to the statutory duties I have referred to above, and the Trust was not. Secondly, that the relationship between the Trust and Dr Suresh was of a very different character from that existing between the GMC and Dr Suresh. The Trust was in a relationship of employment which will have given rise to certain common law duties of care and coterminous implied contractual duties.
176. Accordingly, I conclude that applying the principles established in the cases discussed above, a duty of care cannot arise in respect of the GMC's communication with Dr Suresh on 2 May 2018. This would be incompatible with the statutory scheme which the GMC were obliged to operate.

The Other Allegations

177. Having considered the communication of 2 May 2018, I turn to the remaining allegations in the case.
178. It is pleaded that the GMC failed to recognise or ascertain various matters: (i) to recognise that Dr Suresh was at foreseeable risk of psychiatric injury; (ii) to ascertain whether Dr Suresh was aware of the GMC referral from the police or the Trust; (iii) to ascertain whether any risk assessment had been undertaken by the police; and (iv) to ascertain whether measures were in place to support Dr Suresh when he received the GMC communication (see Particulars §§37.1-37.2.3). Further, it is pleaded that the GMC failed to liaise with the Trust in relation to the referral, the investigation and the available support for Dr Suresh, and that the GMC failed to use its 'FTP suicide tool' when interacting with Dr Suresh (see Particulars §§37.2.4-5).
179. I turn to the characterisation of these allegations in a moment, but whether viewed as positive acts, or as omissions, I have reached the conclusion that a duty of care cannot be recognised for the same essential reasons as I have given above. A duty of care owed to the doctor about whom a referral has been received would create tension and potential conflict with the statutory duties owed by the GMC when assessing that referral, deciding upon, and then taking the initial steps. When the GMC conducts this assessment and performs its preliminary tasks it is obliged to follow the statutory procedures and to give effect to its statutory obligations, including the overarching obligation to protect the public. Imposing a common law duty to the doctor risks the GMC being subject to an obligation, for example, to delay whilst other steps are taken or matters ascertained for the potential benefit of the doctor, when the statutory duty to protect the public might favour greater expedition or the procedure mandate a step "as soon as is reasonably practicable". In my view there is a close analogy to the CPS and the reasoning in SXH. Further, as the extracts from Jain make clear, the reasoning covers not only the exercise of a statutory power (there, seeking a section 30 order) but also "the preparation for" doing so.
180. 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.
181. Notwithstanding that conclusion, for completeness, I have gone on to consider the correct characterisation of the remaining allegations. In Tindall, Lord Leggatt and Lord Burrows, in their joint judgment, stated as follows at [45]:

"A further point may usefully be made about the need to view the defendant's activity as a whole. This dispels the objection that it can be difficult or even arbitrary to distinguish between acts and omissions. Take, for example, what Lord Nicholls of Birkenhead in Stovin v Wise [1996] AC 923, 930, described as the classic illustration of failing to apply the handbrake when parking a car, with the result that the car rolls down a hill and causes damage to another vehicle. On one view the damage in this example results from a mere omission. Any difficulty in explaining the common sense conclusion that the driver owes a duty of care disappears, however, when the focus is directed at the whole activity (of driving) and the question is asked whether the damage would have occurred if the defendant had not engaged in that activity. Plainly the answer is "no". So viewed, it can readily be seen that the case is one of making matters worse."

182. Whilst the remaining allegations concern failures which might be said to be linked to the communication to Dr Suresh because they were preparatory in nature, in my judgment they are properly viewed as distinct from the communication itself. It is alleged that the GMC failed to 'make things better' by doing particular things prior to communicating with Dr Suresh. It follows that unless an applicable exception applies (see below), the general principle that liability should not be imposed in respect of omissions would also apply to the effect that no duty of care falls to be imposed on the GMC in the circumstances.
183. Does such an exception apply? The assumption of responsibility principle established in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 464 has been applied in a variety of situations where the claimant relies on an undertaking by the defendant (express or implied) that reasonable care will be taken. It is not confined to the provision of information and advice: see Poole [68] and [88]. At [88] Lord Reed explained:

"It can also apply where, as Lord Goff put it in Spring v Guardian Assurance plc [1995] 2 AC 296, the claimant entrusts the defendant with the conduct of his affairs, in general or in particular. Such situations can arise where the defendant undertakes the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care will be taken. Such an undertaking may be express, but is more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care. …"

184. In Poole, the Supreme Court rejected a broad submission that a public authority can never assume responsibility by operating a statutory scheme on the basis the responsibility assumed must be voluntary. Lord Reed held that in certain circumstances such an assumption could arise^[22]. At [72] he referred to the judgment of Lord Hoffmann in Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181 and said this:

"Lord Hoffmann … observed at para 38 that a duty of care is ordinarily generated by something which the defendant has decided to do: giving a reference, supplying a report, managing a syndicate, making ginger beer:

"It does not much matter why he decided to do it; it may be that he thought it would be profitable or it may be that he was providing a service pursuant to some statutory duty, as in Phelps v Hillingdon London Borough Council [2001] 2 AC 619 and Ministry of Housing and Local Government v Sharp [1970] 2 QB 223."

He added, at para 39:

"The question of whether the order can have generated a duty of care is comparable with the question of whether a statutory duty can generate a common law duty of care. The answer is that it cannot: see Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057. The statute either creates a statutory duty or it does not. (That is not to say, as I have already mentioned, that conduct undertaken pursuant to a statutory duty cannot generate a duty of care in the same way as the same conduct undertaken voluntarily.) But you cannot derive a common law duty of care directly from a statutory duty. Likewise, as it seems to me, you cannot derive one from an order of court."

185. Lord Reed continued at [73]:

"There are indeed several leading authorities in which an assumption of responsibility arose out of conduct undertaken in the performance of an obligation, or the operation of a statutory scheme. An example mentioned by Lord Hoffmann is Phelps v Hillingdon [2001] 2 AC 619, where the teachers' and educational psychologists' assumption of responsibility arose as a consequence of their conduct in the performance of the contractual duties which they owed to their employers. Another example is Barrett v Enfield [2001] 2 AC 550, where the assumption of responsibility arose out of the local authority's performance of its functions under child care legislation. The point is also illustrated by the assumption of responsibility arising from the provision of medical or educational services, or the custody of prisoners, under statutory schemes. Clearly the operation of a statutory scheme does not automatically generate an assumption of responsibility, but it may have that effect if the defendant's conduct pursuant to the scheme meets the criteria set out in such cases as Hedley Byrne [1964] AC 465 [1964] AC 465 Spring v Guardian Assurance plc [1995] 2 AC 296." (emphasis added)"

186. In HXA, the Supreme Court regarded that judgment as providing an "authoritative guide" to deciding where there had been a relevant assumption of responsibility [57]. In addition, the Court held that it can "sharpen up the analysis always to ask, what is it alleged that the defendant has assumed responsibility, to use reasonable care, to do?" ([91]). In the present case this would have to be that the GMC took responsibility to Dr Suresh to perform its fitness to practise functions with reasonable care to protect him from psychiatric injury or suicide.
187. Just as was the case in Poole (see [81]) and HXA (see [93]), I do not consider that it can be said the GMC assumed or undertook such a responsibility. The statutory functions of the GMC in the present case do not, by their nature, involve the GMC assuming or undertaking a responsibility to Dr Suresh to perform its functions with reasonable care. Indeed, as I have explained, that would create at least the risk of conflict with the duties imposed on the GMC. It is equally not realistic to regard the GMC when operating its fitness to practise procedures as providing a form of service to Dr Suresh on which he could be expected to rely. Anxiety, stress, or foreseeable psychiatric consequences of the notification of a fitness to practise investigation do not amount to reliance. Nor can it be said Dr Suresh entrusted his safety to the GMC, or that the GMC had accepted that responsibility.
188. Moving beyond the nature of the GMC's functions itself, I am satisfied that the Particulars of Claim in this case do not plead any basis from which an assumption of responsibility can be inferred from the particular manner in which the GMC behaved towards Dr Suresh. In Poole at [82] Lord Reed concluded:

"…the particulars of claim must provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred. In the present case, however, the particulars of claim do not provide a basis for leading evidence about any particular behaviour by the council towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred."

189. Similarly, in Tindall [76] there was a complete absence of communication or interaction between the police and Mr Tindall on which Mr Tindall could have relied. The position in this case is, in my judgment, the same. No such behaviour, communication or interaction is apparent in the Particulars of Claim.
190. Nor in my judgment can an exception apply on the basis that the GMC were in a position to control a source of danger (see Tindall [78-84]). The relevant part of the pleaded case is that prior to notification of the allegation, the GMC failed by omission to take various steps to protect Dr Suresh from harm when notification took place. The notification, as a step the GMC was obliged by the statutory scheme to take, cannot be regarded as a danger created or controlled by the GMC. It was a consequence of what the scheme mandates to happen. One is then left simply with a pleaded case that the GMC failed to take various steps. In my view this is not a case where the Dorset Yacht exception can apply.

The Pre-Robinson Cases

191. I next consider the pre-Robinson authorities relied on by Mr Forde KC, and their subsequent rationalisation (where applicable) in Robinson.

Hill

192. The starting point is with the well-known case of Hill v Chief Constable of West Yorkshire [1989] 1 AC 53. The claim was brought by the estate of the final victim of the 'Yorkshire Ripper', Jacqueline Hill, on the basis the police had negligently investigated Peter Sutcliffe's 20 prior offences. Lord Keith identified the question for the House as follows (p59B):

"…whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty."

193. Lord Keith recognised that there was no question that just like anyone else, a police officer "may be liable in tort to a person who is injured as a direct result of his acts or omissions", including in negligence (p59B-C), a point the Supreme Court has emphasised in Michael v Chief Constable of South Wales [2015] AC 1732 at [37] and, by reference to examples, in Robinson [45]-[49].
194. In Hill, Lord Keith explained why a duty of care was not owed in the circumstances, and why the principles set out in Dorset Yacht Co Ltd v Home Office [1970] AC 1004 did not apply, at p62F-H:

"The alleged negligence of the police consists in a failure to discover [Sutcliffe's] identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one. Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female … The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police."

195. In Robinson Lord Reed explained this outcome in terms of "the general principle that the common law does not normally impose liability for omissions, or more particularly for a failure to prevent harm caused by the conduct of third parties" [50].
196. Lord Keith continued in Hill to identify "another reason why an action for damages in negligence should not lie against the police": public policy. He considered that imposing negligence liability was unlikely to reinforce the "general sense of public duty which motivates police forces", because whilst mistakes might be made "it is not to be doubted that they apply their best endeavours to the performance of" their duty. He continued (p63D-H):

"In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. … The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime…. I therefore consider that… the Court of Appeal… was right to take the view that the police were immune from an action of this kind on grounds similar to those … in Rondel v Worsley [1969] 1 AC 191."

197. In Robinson, at [53], Lord Reed explained these comments were concerned with:

"whether the police generally owe a duty of care to individual members of the public, in the performance of their investigative function, to protect them from harm caused by criminals: a question to which, on the principles established prior to the Anns case and subsequently reinstated in Stovin v Wise, Gorringe's case and Michael's case… the answer was plainly no."

198. Thus whilst the Supreme Court in Michael had reached the same decision as the House of Lords had done in Hill, it did so applying the reasoning in Stovin and Gorringe: see Robinson at [54] and Michael at [113]-[118].

Calveley

199. In Calveley & Others v Chief Constable of the Merseyside Police & Others [1989] AC 1228, the House of Lords addressed the issue of whether police officers against whom disciplinary proceedings had been brought under the Police (Discipline) Regulations 1977 were owed a common law duty of care by the investigating officers who were alleged to have failed to conduct the proceedings properly or expeditiously. Answering that question in the negative, Lord Bridge (with whom their other Lordships agreed) confronted an argument that a police officer investigating a crime owes a duty of care to the suspect (pp1238-9):

"Leading counsel for the appellants submitted that a police officer investigating any crime suspected to have been committed, whether by a civilian or by a member of a police force, owes to the suspect a duty of care at common law. It follows, he submits, that the like duty is owed by an officer investigating a suspected offence against discipline by a fellow officer. It seems to me that this startling proposition founders on the rocks of elementary principle. The first question that arises is: what injury to the suspect ought reasonably to be foreseen by the investigator as likely to be suffered by the suspect if the investigation is not conducted with due care which is sufficient to establish the relationship of legal neighbourhood or proximity in the sense explained by Lord Atkin in Donoghue v. Stevenson [1932] AC 562, 580-582 as the essential foundation of the tort of negligence? The submission that "anxiety, vexation and injury to reputation may constitute such an injury" needs only to be stated to be seen to be unsustainable. Likewise it is not reasonably foreseeable that the negligent conduct of a criminal investigation would cause injury to the health of the suspect, whether in the form of depressive illness or otherwise. If the allegedly negligent investigation is followed by the suspect's conviction, it is obvious that an indirect challenge to that conviction by an action for damages for negligent conduct of the investigation cannot be permitted. One must therefore ask the question whether foreseeable injury to the suspect may be caused on the hypothesis either that he has never been charged or, if charged, that he has been acquitted at trial or on appeal, or that his conviction has been quashed on an application for judicial review. It is, I accept, foreseeable that in these situations the suspect may be put to expense, or may conceivably suffer some other economic loss, which might have been avoided had a more careful investigation established his innocence at some earlier stage. However, any suggestion that there should be liability in negligence in such circumstances runs up against the formidable obstacles in the way of liability in negligence for purely economic loss. Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation. Finally, all other considerations apart, it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.

If no duty of care is owed by a police officer investigating a suspected crime to a civilian suspect, it is difficult to see any conceivable reason why a police officer who is subject to investigation under the Regulations of 1977 should be in any better position."

200. In Robinson, this passage was understood as finding that losses claimed, insofar as non-financial, were not reasonably foreseeable, and insofar as financial, were purely economic in nature: see [56]^[23]. At [57] Lord Reed said:

"The case sought to establish a novel type of liability relating to the manner in which an investigation was conducted. Lord Bridge's reference to policy considerations was directed to that claim: he was not addressing the question whether the police may owe a duty of care to avoid causing reasonably foreseeable physical injury in the course of their operations."

Elguzouli-Daf

201. Hill was applied by analogy by the Court of Appeal in Elguzouli-Daf v Commissioner of Police of the Metropolis & Another [1995] QB 335 when deciding that the CPS did not owe a duty of care in negligence to those it prosecutes. There, two men who were arrested, charged and remanded into custody for serious offences alleged that the CPS had been negligent by failing to act with reasonable diligence in obtaining, processing and communicating the results of forensic evidence which showed them to be innocent. In respect of Hill, Steyn LJ noted that "it does not follow that the police may not be held liable in a case where there is some form of assumption of responsibility by the police"^[24] (p348). After explaining that the cases before the Court did not involve any suggestion of assumption of responsibility by the CPS, Steyn LJ held that there were various policy factors which pointed away from the recognition of a duty of care: (p349):

"… I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the C.P.S. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the C.P.S. of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The C.P.S. would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the C.P.S. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of C.P.S. lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the C.P.S. is sued in negligence by aggrieved defendants. The C.P.S. would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the C.P.S. and the quality of our criminal justice system."

202. Accordingly, whilst his Lordship was prepared to accept that the element of foreseeability of harm was established, the combination of the need for proximity and the question of whether it was fair, just and reasonable for the law to impose a duty of care resulted in no duty being imposed: see pp349-50, and also the concurring judgment of Morritt LJ.
203. In Robinson, Lord Reed accepted the correctness of the Court of Appeal's decision in Elguzouli-Daf, noting it had been approved in SXH (see above). Lord Reed observed that the Court of Appeal had been confronting a novel question [58], but his summary of the policy considerations referred to in Hill "might convey a misleading impression if taken out of context. Steyn LJ can hardly have meant that the police enjoyed a blanket immunity in respect of anything done in the course of their activities in the investigation and suppression of crime": [59].

Brooks

204. Brooks v Commissioner of Police of the Metropolis & Others [2005] 1 WLR 1495 concerned an action brought against the police following the racist killing of Stephen Lawrence. Duwayne Brooks was a friend of Stephen who was present at, and a surviving victim of, the attack. As Lord Reed noted in Robinson [60], Mr Books' claim in negligence was that he had suffered psychiatric illness in consequent of his insensitive treatment by officers.
205. Lord Steyn recognised that since Hill a number of developments had taken place which affected the reasoning. He considered "it would be best for the principle in Hill's case to be reformulated in terms of the absence of a duty of care rather than a blanket immunity" [27]. Further not every observation could now be supported, for example there was now a need to adopt a more sceptical approach to the carrying out of all public functions [28]. However ultimately his Lordship decided the core principles established in Hill stood [30]:

"But the core principle of Hill's case has remained unchallenged in our domestic jurisprudence and in European jurisprudence for many years. If a case such as the Yorkshire Ripper case, which was before the house in Hill's case, arose for decision today I have no doubt that it would be decided in the same way. It is, of course, desirable that police officers should treat victims and witnesses properly and with respect… But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence… A retreat from the principle in Hill's case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police's ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill's case, be bound to lead to an unduly defensive approach in combatting crime."

206. Lord Steyn further rejected as "unmeritorious" an attempted distinction with Hill on the basis that there the police negligence was the indirect cause of the murder, whereas in the case of Brooks the police directly caused harm to the claimant: see [32].
207. Lord Rodger, in his concurring judgment, added at [38]:

The decisions in Elguzouli-Daf … and Kumar v Commissioner of the Police of the Metropolis … show, correctly in my view, that the Crown Prosecution Service and the police owe no duty of care to a defendant against whom they institute and maintain proceedings. The reasons are general, but none the less persuasive. The fact that no such legal duty of care exists does not mean, however, that a prosecutor or police officer should be anything other than scrupulous in considering the strengths and weaknesses of the case against the defendant. On the contrary, at every stage they will be conscious that, if their decision is wrong, the defendant will be exposed to the risk of suffering substantial harm. In that very real sense, the defendant's interests are always before them. Prosecutors and police officers are therefore under an ethical and professional duty to act with due care. Nevertheless, this duty does not translate into a legal duty of care to the defendant. A fortiori, for the reasons given by Lord Steyn, police officers investigating crime do not owe witnesses the supposed legal duties of care alleged by the respondent. But, as a matter of professional ethics, officers can be expected to treat witnesses with appropriate courtesy and consideration, and may be open to disciplinary proceedings if they do not."

208. In Robinson, Lord Reed noted that the result in Brooks was not in question: "On ordinary principles, behaviour which is merely insensitive is not normally actionable, even if it results in a psychiatric illness" [60]. He cited paragraph 30 of Lord Steyn's judgment in Brooks and said this [62]:

"by endorsing the principle in the Hill case in the terms that he did, Lord Steyn confirmed that the functions of the police which he identified were public law duties and did not give rise to private law duties of care in the absence of special circumstances, such as an assumption of responsibility. Nothing in his reasoning is inconsistent with the existence of a duty of care to avoid causing physical harm in accordance with ordinary principles of the law of negligence. Lord Steyn plainly had no intention of undermining the confirmation in Hill's case that the police were under such a duty of care. The passage cited was directed towards a different issue."

209. In their concurring judgments, Lord Mance and Lord Hughes dealt with Brooks somewhat differently^[25]. Lord Mance observed the facts involved the alleged exacerbation of a serious post-traumatic stress disorder as a result of the police's failure to treat Mr Brooks lawfully: [92]. Lord Hughes considered the case a full endorsement of the Hill case, and the policy rationale within it: [104-5] and [118].

Other First Instance Cases

210. Finally, I was referred to a number of first instance cases in which negligence actions brought against regulators were dismissed.
211. Diamond v Mansfield QC & Others [2006] EWHC 3290 was a claim brought by a barrister against those acting on behalf of the Bar Council and its Conduct Committee. A complaint concerning the barrister's professional conduct was raised but ultimately withdrawn. The claim alleged the defendants had not exercised reasonable professional skill and care in commencing the prosecution or in exercising their statutory duties: see [25(v)] and [26]. In light of the parties' submissions (see [29], [61], [81]) Nelson J was satisfied that the negligence claim should be struck out applying Caveley: [114]. He observed at [93-4]:

"[93]… In Caveley it was held that there was no common law duty of care owed by an investigating police officer to another police officer. I agree with Mr Diamond's submission that the distinction between Calveley and the present case is that the police are a statutory body obliged to investigate crime whereas the Bar Council is a disciplinary body of a single profession. Nevertheless the principles set out in Lord Bridge's judgment at p1238 – 1239 are applicable to the Bar Council. In particular it would be equally contrary to public policy for the Bar Council to be fettered by the threat of negligence actions in their policing of the Code of Conduct, particularly when a strong independent fearless and competent Bar is required for the proper administration of justice.

[94] I am therefore satisfied that no duty of care in negligence is owed by the Bar Council, the PCCC or its investigating officers to any individual member of the Bar. I note that Lord Bridge at p1238F said that where no action for malicious prosecution would lie, it would be strange indeed if an acquitted Defendant could recover damages for negligent investigation. That is equally applicable here …"

212. Vaidya v GMC & Others [2010] EWHC 984 (QB) was a case in which a doctor was found guilty by a Fitness to Practise Panel of serious professional misconduct (see [8-9]). The doctor subsequently brought proceedings against the GMC inter alia for negligent misstatement concerning letters sent following the disciplinary proceedings ([2], [50]). Gray J held that Dr Vaidya had no locus standi to bring the claims for negligent misstatement because he had been made bankrupt: [54-55]. He then continued, at [55]:

"Moreover I cannot accept, in the light of Jain v Trent Strategic Health Authority [2009] 1 AC 853… that a tortious duty of care should be imposed on a body such as the GMC because to do so would or might inhibit the GMC in the performance of its duties including its duty to safeguard patients."

213. Shortly after those proceedings, a further judgment was handed down refusing Dr Vaidya permission to appeal against the decision of the County Court to strike out claims he had brought under the Race Relations Act 1976, for breach of statutory duty under section 1(1A) of the Act and in negligence. Hamblen J (as he then was) applied Jain. He considered "similar considerations apply here" and recorded that Gray J had reached the same conclusion in the earlier proceedings: see Vaidya v GMC & Others (29 June 2010, BM00044A, Unreported) at [29].
214. R (Davies) v Royal College of Veterinary Surgeons [2015] EWHC 3282 (Admin) was a judicial review challenge of a regulator's decision to close complaints made by the claimant against two registered veterinary nurses. Ground three alleged that in discharging its statutory duty as regulator, the Royal College owned the complainant a common law duty of care which it breached with consequences for his mental health (see [8]). Patterson J held such a claim was misconceived in the context of a claim for judicial review ([35]). He reproduced with approval the reasons given by Warby J on the papers (see [31]):

"…The notion that a regulator owes the regulated a duty of care in this regard is a startling one for which no authority is cited. It would appear to be inconsistent with such authorities as Calveley v Chief Constable of Merseyside Police [1989] AC 1228 and Wright v Jockey Club Times 16 June 1995. I would need considerable persuasion for concluding that the proposition is anything other than fanciful."

215. In Rashid v GMC (25 August 2016, unreported, QBD 3LS90957), the claimant doctor brought a claim against the GMC, inter alia for negligently deciding to suspend him from practice. HHJ Gosnell, sitting in the Leeds District Registry, considered that claim should be struck out, relying on Jain and Vaidya. The Judge said this at [4]:

"…I happen to agree … based on the authority of Trent Strategic Health Authority v Jain that there could be no duty of care by a disciplinary body to a doctor or someone who is subject to the disciplinary body in the way that they conduct their proceedings, in the main, because of public interest considerations and the fact that it would be inappropriate for such a duty of care to arise in the context of a statutory disciplinary body. Therefore, even if Dr Rashid could show – and, actually, he has got no evidence put before the court at the moment that this is right – that the case officers were negligent in the way they prepared the case or, indeed, if the Panel were negligent in the way that they dealt with the case, that would not found a claim against the GMC."

216. Finally, I was referred to Master Cook's judgment in Siddiqui v Naved Kamal Alizai and GMC (26 July 2021, unreported QB-2021-000372)^[26]. The negligence claim brought against the GMC concerned advice given to the claimant about indemnity insurance, the need to register with the Care Quality Commission, alleged prosecutorial misconduct by the GMC as prosecutor for the disciplinary hearing, breaking its own rules, and having a conflict of interest: see [11-14]. At [35] Master Cook concluded as follows:

"…the case law, and in particular the case of Jain, is against the claimant. The decision of the House of Lords in that case was, in my judgment, correctly applied to an analogous situation by HHJ Gosnell in the case of Rashid. It seems to me, again for the reasons submitted by Mr Knight, that the reasoning in that case applies directly to the position of the GMC in this case. It seems to me that the submission that the GMC could owe a duty of care to those it regulates and in the course of these proceedings is one that simply cannot be derived from any case law. In the circumstances a claim based on such a duty of care would be bound to fail."

Conclusions on the Duty Issue

217. Pulling the threads together:

i) Applying general principles in accordance with the framework identified in Robinson, in my judgement it would be inconsistent with the statutory scheme established under the Act and the Rules to hold that the GMC owes a duty of care to a doctor subject to investigation in relation to the timing, manner and content of the communication to him of that fact. The statutory powers and duties of the GMC restrict the scope of its liability in negligence as explained in the cases of D v East Berkshire, Jain, SXH, Robinson and Poole.

ii) In this case the allegations made against the GMC consist of a positive act (the communication on 2 May 2018) and, separately, omissions (steps it is alleged the GMC ought to have done prior to the communication on 2 May 2018). A duty of care does not arise in respect of either for the reasons in (i) above. Nor could a duty of care arise in respect of the alleged omissions as the GMC cannot be argued to have assumed responsibility for Dr Suresh's wellbeing in circumstances where Dr Suresh relied on the same.

iii) The pre-Robinson caselaw falls to be read in light of the developments explained in that and subsequent cases. I have examined and applied the general principles governing liability in negligence without needing to consider separately whether the existence of a duty is fair, just and reasonable, and within that context having recourse to policy considerations of the kind referred to in the older authorities. For the reasons given in (i) and (ii) above, in my view the application of general principles provides the answer.

iv) Had it been necessary to give effect to policy considerations (as described by Lord Reed, or by affording such considerations a more centrally dominant role as Lord Hughes did in Robinson at [118]), I would have attached significant weight to those identified in cases such as Elguzouli-Daf and Brooks. Those considerations seem to me to apply just as much to a regulator in the position of the GMC as they do to the police and the CPS. Imposing a duty of care would in my judgment have a similarly chilling and diverting effect on the GMC's task of investigating fitness to practise in order to protect the public. Mr Hyam submitted that there was no evidence before the Court to support the proposition that recognising a duty of care would impede the work of the GMC, indeed he went so far to say that it would complement it. I do not accept that submission. As Lord Hughes observed in Robinson at [112] the Court can give effect to policy considerations where the consequences of defensive behaviour can scarcely be doubted; that in my view is the position here. The majority in the Canadian case of Hill provided an alternative view, but as Lord Steyn concluded in Brooks, assessment of policy from overseas is not determinative of "our legal policy": see [26]^[27].

v) The first instance cases discussed above are examples of the application of the principles in Calveley and Jain to regulators. They can be seen as applications of the general principle identified at (i) above. In my view the result of these cases is consistent with the conclusion I have reached at (i) above and is consistent with the policy considerations discussed at (iv) above.

218. Standing back, and on the assumption that the foreseeability issue will be determined in the Claimant's favour, I am satisfied that there is a clear and certain answer in the negative to the question of whether a duty of care was owed by the GMC to Dr Suresh in the circumstances. This conclusion is reached by the application of general principles of negligence liability to the case as pleaded, taken at its highest. Following Robinson and Poole, the correct approach is no longer uncertain or developing. The Particulars of Claim therefore do not disclose a legally recognisable claim in negligence against the Defendant. That claim must therefore be struck out. In the alternative, I conclude the Claimant has no real prospect of succeeding on the duty issue and there is no other compelling reason for this issue to be disposed of at trial. I would therefore have summarily dismissed the claim.

The Foreseeability Issue

219. Whilst my conclusion on the duty issue is determinative of the application in respect of the negligence claim, I briefly address the GMC's further submission that the Claimants' case on foreseeability cannot be maintained.

The Parties' Submissions

220. Mr Forde KC submitted that the Claimants' pleaded case (set out at paragraphs 8 to 10 above) was generic. He argued that showing generic vulnerability, for example through statistics, is insufficient to establish foreseeability of psychiatric harm or suicide in a particular case. There was nothing in the Particulars of Claim, or in the evidence, which could suggest that the GMC had a specific indication of the potential for psychiatric harm or suicide in the case of Dr Suresh prior to 2 May 2018. Mr Forde referred to the lack of anything concerning in Dr Suresh's response to the pathfinder email (paragraph 92 above) which might have required the GMC to use tools such as the FTP Suicide Policy Tool. Further, there was no indication in the evidence that the Trust had informed the GMC about any concerns, whether through ELAs or generally, and despite the Trust being aware of the referral from the police to the GMC. Mr Forde added that it was fanciful to suggest that suicide (or any psychiatric injury) was a foreseeable consequence of the alleged failings in this case.
221. In support of those submissions, Mr Forde took me to cases in which the Courts have accepted that psychiatric injury relating to stress can be hard to foresee even within an employment relationship: Hatton v Sutherland [2002] ICR 613 and Yapp v Foreign and Commonwealth Office [2015] IRLR 112. In both cases, the Court of Appeal held that generally an employer is entitled to assume an employee is of "reasonable fortitude" (per Davis LJ at [155] of Yapp; see also [119(1)] per Underhill LJ, and [43(3)] in Hatton per Hale LJ, as she then was). However, there can be exceptional cases falling outside that principle (see Yapp at [119(3)], [123], [125], [156]). Mr Forde submitted that the relationship between the regulator and the regulated did not involve the same degree of proximity as in an employment relationship. Mr Forde also relied on Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 for the proposition that the circumstances when a duty of care is imposed to prevent suicide or self-harm are "very rare" (Lord Hoffman at p368) and "unusual" (Lord Hope at p379).
222. Mr Hyam KC submitted that there was evidence before the Court to suggest that the risk of psychiatric harm, and even suicide, in doctors subject to GMC fitness to practise procedures was not only foreseeable but actually foreseen by the GMC. He took me to Hartman v South Essex NHS Trust [2005] ICR 782 at [133-134] and submitted that foreseeability is established where risks are in fact foreseen. He referred to the Horsfall and Appleby reviews, along with a blog post written by Professor Appleby in 2016, the contents of which were known by the GMC. He emphasised the recognition in the reviews of a higher rate of suicide amongst doctors compared to the general population and the additional risk factor of multiple jeopardy.
223. He also relied on Professor Shaw's report of 8 April 2024. At §5.14 she opined that:

"There is a higher statistical risk of suicide for doctors facing allegations. Furthermore, there is some evidence (Plunkett et al) that anaesthetists may be a sub-group at particular risk although this largely relates to availability of means to self-harm.

Previous research in our department (Webb et al) has also shown that people charged with an offence, particularly a sexual offence, are at increased risk of suicide, even if they are acquitted.

There is very little research on whether there is increased risk of mental ill-health where a doctor faces serious allegations and/or in the case of referral to the GMC. However recently Bourne and colleagues (Bourne et al) found in a large-scale survey that Doctors with recent/current complaints against them have significant risks of moderate/severe depression, anxiety and suicidal ideation. …

Not everybody who faces allegations and referral to the GMC will be at risk of suicide, as individual risk factors will vary together with individual protective factors.

However, doctors in this situation should be considered at higher risk of suicide compared with the general population, until an individual assessment of risk and protective factors is conducted which quantifies this risk.

…

The GMC should have been aware of the increased statistical risk of psychiatric injury and suicide in doctors facing serious allegations. In my opinion there should be an assumption of increased risk in all cases where doctors are referred to the GMC, particularly in cases where there is police involvement, in particular when the allegations are of a sexual nature…"

224. Mr Hyam argued that the issue of the GMC's constructive knowledge, and the foreseeability of the relevant harm in light of that constructive knowledge, was a matter for trial and assessment on all the evidence. He said at trial the Court would explore what relevant individuals and organisations interacting with Dr Suresh (such as the police and the Trust) knew about his state at various times and what the GMC ought to have known. He submitted it was seriously in dispute that the GMC were not in a position to know about his vulnerability. He placed emphasis on the pre-existing relationship between registrant and the GMC and the obligations owed by a Responsible Officer. He submitted that there ought to have been liaison with the Trust's Responsible Officer, not least because the GMC knew there had been no referral by the Trust and had recorded this in the note of initial consideration of 17 April 2018 (see paragraph 78 above). What was foreseeable in light of that liaison was properly a matter for trial.

My Conclusions on the Foreseeability Issue

225. In my view the case pleaded by the Claimants on foreseeability is not such that it should be struck out, or summarily dismissed.
226. The first part of the Claimants' case is built on a generic proposition that the Defendant knew (or at least ought to have known) that there was a risk of psychiatric injury and self-harm for all doctors accused of sexual assault on a child when subject to regulatory proceedings. There is evidence in the Horsfall and Appleby reviews which tends to support those propositions, as well as the opinion of Professor Shaw. I cannot at this stage conclude that the prospects of the Claimants making out this part of their case are "fanciful".
227. In any event, the Claimants go beyond the generic case and submit that the GMC ought, by (for example) liaising with the Trust, to have known that there were specific indications of vulnerability in Dr Suresh's case. There are two aspects to this:

i) First, it would be necessary for the Court to reach conclusions concerning Dr Suresh's vulnerability and state of mind over the relevant period. It is clear to me that this is a highly fact sensitive issue and conclusions of fact would be better made after hearing the evidence at trial. The evidence currently before the Court suggests that the exercise will be complicated by Dr Suresh's state of mind having fluctuated as the events of April 2018 came to pass. There were clearly periods where the situation for him was more acute. The Trust, and Dr Dwarakanath in particular, appears to have been sufficiently concerned about his health and well-being at various stages (eg on 11 April 2018, 16 April 2018) to make a number of attempts to persuade Dr Suresh to agree to an Occupational Health referral. Dr Visalakshmi Suresh's account also highlights particular moments of despair that she witnessed in her husband, but equally times when he was more upbeat and able to look to the future. It would not, in my judgment, be appropriate for the Court to reach its conclusions on this topic as a paper exercise.

ii) The second issue is whether the GMC ought to have known of such matters. The evidence put before the Court supports the GMC's case that it did not actually know about Dr Suresh's state of mind at the time. Certainly Dr Suresh's response to the pathfinder email of 1 May 2018 would not have suggested anything untoward on its face. The Claimants say, however, that the GMC ought to be ascribed the knowledge it would have obtained through liaison with the Trust (either the Responsible Officer or the GMC ELAs) and that acting reasonably it would have made enquiries not least given the GMC's actual knowledge of the generic risks that arise in cases involving these sorts of allegations. As Mr Hyam submitted, the GMC's records suggest that it was aware there had been no referral from the Trust in relation to this allegation. He submitted this was a point of concern that ought to have given the GMC a reason to enquire. It seems to me that determining whether the GMC were put on a reasonable line of enquiry for the purposes of determining what was foreseeable, and if so, what information would have been obtained are fact sensitive exercises for the Court which ought to be determined at trial. Whatever the ultimate strength of Mr Hyam's submission that the GMC ought to have enquired given the lack of referral by the Trust, I cannot conclude at this stage it is bound to fail, or that the prospects are "fanciful".

228. Accordingly, I conclude that the issue of foreseeability of psychiatric harm or suicide (viewed as an issue in its own right) would have been one for trial. However, I have decided that there are no prospects of the Claimants establishing the existence of a duty of care, and therefore the claim in negligence will nonetheless be struck out.

G. The Human Rights Claim

229. The Claimants' second claim is brought under section 7(1) HRA. They claim that the GMC, a public authority, has acted incompatibly with Article 2 ECHR on the basis that:

i) the GMC knew or should have known that Dr Suresh was at a real and immediate risk of suicide; and

ii) the same failures relied on in respect of the claim of negligence violated the positive obligations the GMC owed Dr Suresh under Article 2 and caused him to lose a substantial chance of avoiding harm.

230. The pleading, the relevant part of which is set out at paragraph 13 above, relies on breach of what is known as the "operational duty" under Article 2 ECHR. There is no reliance on the "systems duty".
231. On its application the GMC argues that the claim is bad in law and has no realistic prospect of success on the facts because:

i) regulatory proceedings do not fall within the 'well-defined circumstances' in which an operational duty can arise under Article 2; and

ii) the pleaded case and evidence, at its highest, is incapable of establishing that the GMC were, or ought to have been aware of a "real and immediate" risk to the life of Dr Suresh.

Article 2 and the Operational Duty

232. Article 2 ECHR provides that "Everyone's right to life shall be protected by law". It is now well understood that the European Court of Human Rights ("ECtHR") has interpreted these words as imposing on contracting states three different classes of duty: (i) a negative duty to refrain from taking life, except in the exceptional circumstances described in Article 2(2); (ii) a positive duty to investigate openly and properly deaths for which the state might bear responsibility; and (iii) in certain circumstances a positive duty to protect life. Within that third category, there are two types of positive duty to protect life: (a) a so-called "systems duty", to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life; and (b) an "operational" duty to protect specific persons in defined circumstances (see generally Rabone & Another v Pennine Care NHS Trust (INQUEST and others intervening) [2012] 2 AC 72 at [12]; and R (on the application of Maguire) v His Majesty's Senior Coroner for Blackpool and Flyde & another [2025] AC 63 at [2], [10-11], [238-241]).
233. The present case concerns the operational duty. The articulation of this duty by the ECtHR in Osman v United Kingdom (1998) 29 EHRR 245 was summarised by Lord Dyson in Rabone as follows (at [12]):

"[Osman] was a case about the alleged failure of the police to protect the Osman family who had been subjected to threats and harassment from a third party, culminating in the murder of Mr Osman and the wounding of his son. The court said that in "well-defined circumstances" the state should take "appropriate steps" to safeguard the lives of those within its jurisdiction including a positive obligation to take "preventative operational measures" to protect an individual whose life is at risk from the criminal acts of another: para 115. At para 116, the court went on to say that the positive obligation must be interpreted "in a way which does not impose an impossible or disproportionate burden on the authorities".

234. Lord Dyson further derived from Osman that where the case fell within 'well-defined circumstances', there would be a breach of the positive obligation if, to use the language of para 116 of Osman:

"the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk"

235. It is well appreciated that a real and immediate risk of life alone, even if known about by the state will not suffice to give rise to the operational duty. In the context of suicide, Baroness Hale explained in Rabone [100]:

"… It does seem fairly clear that there is no general obligation on the state to prevent a person committing suicide, even if the authorities know or ought to know of a real and immediate risk that she will do so. I say this because, in Mammadov v Azerbaijan (Application No 4762/05) (unreported) given 17 December 2009, decided only a few months before the Watts case, the court twice stated, at paras 99 and 100, that the duty to protect a person from self-harm arose only "in particular circumstances", citing Keenan v United Kingdom (2001) 33 EHRR 913, Renolde v France 48 EHRR 969 and Tanribilir v Turkey (Application No 21422/93) (unreported) given 16 November 2000. This is understandable. Autonomous individuals have a right to take their own lives if that is what they truly want. If a person announces her intention of travelling to Switzerland to be assisted to commit suicide there, this is not, by itself, sufficient to impose an obligation under article 2 to take steps to prevent her."

'Well-Defined Circumstances'

236. It follows from the above that for the operational duty to apply, it is necessary for the case to fall into the category of "well defined circumstances"^[28] in order to provide a sufficient connection or link with the responsibility of the state.

Examples

237. Mr Mant, who argued this part of the application on behalf of the GMC, took me to [15]-[18] of Rabone where Lord Dyson identified some examples of the circumstances in which the operational duty has been held to exist. Further examples, drawing on the jurisprudence of the ECtHR, are discussed in Bean LJ's judgment in R (Gardner & Others) v Secretary of State for Health and Social Care & Others [2022] EWHC 967 (Admin) and the judgments of the Supreme Court in Maguire. Mr Hyam KC also referred to a number of ECtHR authorities to which I shall turn in due course.
238. Cases falling within the 'well defined circumstances' category include those of individuals imprisoned by the state. The operational duty has been held to extend to the protection from harm from fellow prisoners and from suicide. Also covered are psychiatric patients detained in hospital for their treatment and those in immigration detention. However the duty has not only been recognised in cases of incarceration. As the result of Rabone shows, the duty has been applied to those voluntarily receiving psychiatric treatment in hospital (see also Maguire and the jurisprudence referred to at [57]). The duty can also become engaged where the state has put an individual's life at risk though the denial of health care which they have undertaken to make available to the population generally: see Maguire at [22]. On the other side of the line are cases involving hospital deaths or medical treatment due to "casual acts of negligence" (see Rabone per Lord Dyson [19] and [30] and Maguire per Lord Sales at [49]-[50]). See also Bean LJ's discussion of the medical cases in Gardner at [239]ff.
239. Other cases where the operation duty has been found to apply include Mammadov v Azerbaijan (2014) 58 EHRR where a woman set herself alight whilst the police were trying to evict her and her family from a building in which they were squatting (see [115] and the discussion at Rabone [102]). In Rabone, Baroness Hale also referred to cases where the state has positive obligations to protect children and vulnerable adults in respect of real and immediate risk of serious abuse or threats to their lives of which the authorities are or ought to be aware and which is within their power to prevent (Rabone [104]). Baroness Hale also referred to Watts v UK (2010) 51 EHRR SE5 where a duty was owed to an elderly resident of a care home but was not breached (Rabone [97-98]; see also Maguire [185]ff). On the other hand in Gardner, the Court found no ECtHR authority which had gone as far as holding that a State is under an operational duty to take all reasonable steps to avoid the real and immediate risk to life posed by an epidemic or pandemic to as broad a sector of the population as residents of care homes for the elderly: see [252].
240. In Gardner, Bean LJ considered a number of 'environmental cases' such as Öneryildiz v Turkey (2005) 41 EHRR 20. He summarised them as follows:

"…all [cases where the operational duty has been found to arise] concern failures by municipal authorities to take any steps to mitigate a physical threat, whether from dangerous activities, man-made hazards or a naturally occurring hazard. All have in common that the threat was to inhabitants of a particular locality… and also that in each case the authorities failed over a significant period, despite ample notice, to take any effective steps to deal with the problem…

241. Mr Hyam KC relied on Kemaloglu v Turkey (2015) 61 EHRR 36 in which the Court found a violation of the operational duty where a 7 year old child died walking home from school in a heavy snow storm when the school had not advised the bus company of its early closure that day. The ECtHR referred to the duty being applicable to [35]:

"…school authorities, who carry an obligation to protect the health and well-being of pupils, in particular young children who are especially vulnerable and are under the exclusive control of the authorities"

From Examples to Criteria

242. In the absence of a decision of the ECtHR which clearly articulates the criteria by which it decides whether an article 2 operational duty exists, in Rabone Lord Dyson sought to identify "the essential features of the cases where Strasbourg has so far recognised the existence of an operational duty" [21].
243. He described the relevant factors from [22-25] as follows:

"22. No decision of the ECtHR has been cited to us where the court clearly articulates the criteria by which it decides whether an article 2 operational duty exists in any particular circumstances. It is therefore necessary to see whether the cases give some clue as to why the operational duty has been found to exist in some circumstances and not in others. There are certain indicia which point the way. As Miss Richards and Mr Bowen submit, the operational duty will be held to exist where there has been an assumption of responsibility by the state for the individual's welfare and safety (including by the exercise of control). The paradigm example of assumption of responsibility is where the state has detained an individual, whether in prison, in a psychiatric hospital, in an immigration detention centre or otherwise. The operational obligations apply to all detainees, but are particularly stringent in relation to those who are especially vulnerable by reason of their physical or mental condition: see, for example, Keenan v United Kingdom 33 EHRR 913 (prisoner suffering from a mental disorder) and Tarariyeva v Russia (2006) 48 EHRR 609 (person detained in a prison hospital suffering from a serious physical illness). The significance of the assumption of responsibility was summarised by Lord Rodger in Mitchell v Glasgow City Council [2009] AC 874, para 66:

"The obligation of the United Kingdom under article 2 goes wider, however, In particular, where a state has assumed responsibility for an individual, whether by taking him into custody, by imprisoning him, detaining him under mental health legislation, or conscripting him into the armed forces, the state assumes responsibility for that individual's safety. So in these circumstances police authorities, prison authorities, health authorities and the armed forces are all subject to positive obligations to protect the lives of those in their care."

23.  When finding that the article 2 operational duty has been breached, the ECtHR has repeatedly emphasised the vulnerability of the victim as a relevant consideration. In circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state, such as where a local authority fails to exercise its powers to protect a child who to its knowledge is at risk of abuse as in Z v United Kingdom (2001) 34 EHRR 97. It is not relevant for the present purposes that this was a complaint of breach of article 3 rather than article 2.

24. A further factor is the nature of the risk. Is it an "ordinary" risk of the kind that individuals in the relevant category should reasonably be expected to take or is it an exceptional risk? Thus in Stoyanovi v Bulgaria (Application No 42980/04) (unreported) given 9 November 2010, the ECtHR rejected an application made by the family of a soldier who died during a parachute exercise. At paras 59–61, the court drew a distinction between risks which a soldier must expect as an incident of his ordinary military duties and "'dangerous' situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man-made or natural hazards". An operational obligation would only arise in the latter situation.

25. All of these factors may be relevant in determining whether the operational duty exists in any given circumstances. But they do not necessarily provide a sure guide as to whether an operational duty will be found by the ECtHR to exist in circumstances which have not yet been considered by the court. Perhaps that should not be altogether surprising. After all, the common law of negligence develops incrementally and it is not always possible to predict whether the court will hold that a duty of care is owed in a situation which has not been previously considered. Strasbourg proceeds on a case by case basis. The jurisprudence of the operational duty is young. Its boundaries are still being explored by the ECtHR as new circumstances are presented to it for consideration. But it seems to me that the court has been tending to expand the categories of circumstances in which the operational duty will be found to exist."

244. Bean LJ's summary of what can be drawn from the authorities is also illuminating at [250] of his judgment in Gardner:

"i. a real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty;

ii. generally, the other necessary factor is the assumption by the State of responsibility for the welfare and safety of particular individuals, of whom prisoners, detainees under mental health legislation, immigration detainees and conscripts are paradigm examples since they are under State control;

iii. however, the duty may exist even in the absence of an assumption by the State of responsibility, where State or municipal authorities have become aware of dangerous situations involving a specific threat to life which arise exceptionally from risks posed by the violent and unlawful acts of others (Osman) or man-made hazards (Oneryildiz, Kolyadenko ) or natural hazards (Budayeva), or from appalling conditions in residential care facilities of which the authorities had become aware (Nencheva, Campeanu);

iv. Watts suggests that, in appropriate circumstances (which remain so far undefined), the operational duty may also arise where State or municipal authorities engage in activities which they know or should know pose a real and immediate risk (according to Maguire, an exceptional risk) to the life of a vulnerable individual or group of individuals."

245. Finally, in Maguire, Lord Sales observed at [190-1]:

"190. When an individual is placed in a care home, a nursing home or a hospital, the state's operational duty in the targeted sense derived from Osman, para 116, does not involve an assumption of responsibility extending to taking responsibility for all aspects of their physical health, with the consequence that if he or she dies from some medical condition which was not diagnosed and treated in time the state's duty is engaged and the enhanced procedural obligation in terms of accountability is triggered. Even though the individual may not be at liberty, the state is not for that reason made the guarantor of the adequacy of healthcare provided to them in all respects, with an enhanced obligation to account if things go wrong. That would not be consistent with the established approach in relation to cases of alleged medical negligence and the approach adopted in the suicide risk cases discussed above.

191. I agree with Popplewell LJ's comment in Morahan (para 48), that:

"This is consistent with principle because the article 2 operational duty is not one to take steps in the abstract, but rather to take steps to avert a specific risk to life; until the specific risk to life has been identified, it is impossible to answer the duty question. Just as in the domestic tortious law of negligence it is not sufficient merely to ask, 'Is there a duty' but rather, 'Is there a duty not carelessly to inflict a particular type of damage?', so too the article 2 operational duty must be examined and defined as a duty to take reasonable steps to avoid the specific risk to life which is relevant in the circumstances of a given case."

Application

246. Mr Mant submitted that there was no assumption of responsibility here by the GMC and no exercise of control in the required sense. He observed that the GMC were not in touch with Dr Suresh until the emails of 1 and 2 May 2018 and that it did not subject him to any form of control comparable with imprisonment/detention or even inpatient medical or care-home care. He also submitted that notwithstanding the recognition of the position of doctors who are subject to disciplinary proceedings in the Horsfall and Appleby reviews, there is insufficient vulnerability for an operational duty to arise. Finally he submitted that the nature of the risk did not point in favour of the operational duty applying: sending a letter, even if it informed the recipient they were to be subject to regulatory proceedings, was not sufficiently exceptional in terms of risk. The risk of harm, such as it was, was one doctors should reasonably be expected to take.
247. Mr Hyam KC argued that the circumstances in which the operational duty may be owed have been expanded by the ECtHR over time to include deaths outside state detention. As well as Rabone, he relied on Öneryildiz, Watts, Mammadov and Kemaloglu. He argued that an assumption of responsibility by the state was not a pre-requisite to the duty applying and, to the extent it is a relevant factor, it is sufficient if the assumption arises from a positive act by or on behalf of the state body (see Rabone [22]). That was the position here as the risk to life arose because of the GMC's own actions and the GMC assumed responsibility for the manner of the notification. He relied on Dr Suresh's vulnerability and his case that the GMC ought to have known about it.
248. Having considered the factors identified in Rabone and subsequent caselaw, and having taken the Claimants' case at its highest, I have reached the clear view the sending of communications by the GMC to Dr Suresh about a forthcoming investigatory process did not occur in circumstances which amount to the 'well-defined circumstances' required to give rise to the operational duty under Article 2 ECHR. I have reached this conclusion for the following reasons.

i) The investigative role of the regulator (including the initial engagement with a doctor in notifying him or her of the allegation and the fact there will be a fitness to practise investigation) is not one which assumes responsibility for the safety and welfare of the doctor. I have already set out my reasons why, as a matter of applying common law principles, I do not consider that this is a case of assumption of responsibility. Those considerations apply here too. I have also taken into account the concept in the wider sense set out in the Convention jurisprudence, viz in terms of exercising control (see Lord Dyson in Rabone at [22]). However the GMC did not exercise 'control' (as that term is understood in the Convention jurisprudence) over Dr Suresh in any meaningful way. Subjecting him to a regulatory process does not, in my view, come close to the level required for Article 2 purposes. Whilst I agree with Mr Hyam that clearly state detention is not necessary, and is at one end of the spectrum, nonetheless the cases show that where the duty has been recognised by reference to control, a real and meaningful element of control is to be present. Thus in Mammadov the Court took the view that in the "police operation with the aim of eviction, as in any other police operation, the police are expected to place the flow of events under their control, to a certain degree" [114]. On the facts there, the risk to life arose in front of state agents in circumstances where the Court considered the agents could exercise that control: see [116]. In Kemaloglu the Court placed emphasis on the children being "under the exclusive control of the authorities" [35]. There was no control at this level in the present case. All the GMC did was send communication to Dr Suresh about the fact he was subject to a regulatory investigation. That, in my judgment, is clearly insufficient. Mr Hyam submitted that assumption of responsibility/control is not a sine qua non for finding that the article 2 operational duty applies. I agree (see Gardner [250(iii)]), but in my view its absence here is an important factor, deserving of weight, and is strongly indicative that the duty does not arise in the circumstances.

ii) I further do not consider that the nature of the risk, arising as it does from the notification to a doctor by email/letter that they are to be subject to a regulatory investigation, can properly be described as an "exceptional" one. As the Supreme Court recognised in Rabone [24], by reference to Stoyanovi v Bulgaria (Application No 42980/04, 9 November 2010, unreported), the proper distinction was between risks which must be ordinarily be expected (there by a soldier as an incident of his ordinary military duties) and other dangerous situations "of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man-made or natural hazards". In my view, the risks that arise in the course of investigatory action taken by the GMC are insufficiently exceptional to fall in the latter category. This is so despite the fact that the notification letter was sent by the GMC itself.

iii) Another relevant factor to take into account is whether the person whose life is at risk is in circumstances of sufficient vulnerability. I accept the situation of a doctor being notified of a regulatory investigation is one which involves vulnerability. That emerges from the Horsfall and Appleby reviews and is supported by Professor Shaw's expert report. Even taking this factor at its highest, I do not regard it as sufficient to engage the operational duty. The position is in my view akin to the cases concerning negligent treatment of hospital patients. In Powell v United Kingdom (2000) 30 EHRR CD 362, discussed at [19] of Lord Dyson's judgment in Rabone and [36] of Lord Sales' judgment in Maguire, the ECtHR did not impose an operational duty. The ECtHR noted at p364:

"…where a contracting state had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent coordination among head professionals in the treatment of a particular patient are sufficient of themselves to call a contracting state to account from the standpoint of its positive obligations under article 2 of the Convention to protect life."

This is so despite the fact that patients can be in positions of extreme vulnerability.

249. Having addressed those factors individually, I have stood back and considered them cumulatively, and the case in the round, taking (as I must) the Claimants' pleaded case at its height. I have also had regard to the ECtHR's clear statement in Osman that the positive obligation must not be interpreted in a way which imposes an impossible or disproportionate burden on the authorities. Having done so I am clear that this this case does not present facts which could fall within the "well-defined circumstances" and as such the article 2 operational duty cannot arise.
250. I have given careful thought to the Supreme Court's reference in Rabone (2012) to the developing nature of the jurisprudence of the operational duty: see [25]. I have reflected on whether that might be a reason for this issue to be determined at trial. I have concluded that it is not. This is because, first, 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. Secondly, as both parties accepted, the domestic courts must keep step with, but not march ahead of the Strasbourg Court (see R (Ullah) v Special Adjudicator [2004] 2 AC 323, as applied in R (Al-Skeini) v Secretary of State for Defence [2008] AC 153 at [106] and R (AB) v Secretary of State for Justice [2022] AC 487 at [54]-[59]. Recognising the present circumstances as within 'well defined circumstances' would in my view march well ahead of the position adopted in Strasbourg.
251. This being so, I am certain the Claimants' claim under the HRA is bound to fail and should be struck out. In the alternative I would find that the Claimants' prospects of establishing that the present circumstances give rise to the operational duty are fanciful and that the HRA claim should be summarily dismissed.

Real and Immediate Risk to Life

252. In case I am wrong about that conclusion, I turn to the second point raised by the GMC, namely that even if an operational duty was capable of arising in the context of these regulatory proceedings, the pleaded facts and evidence, taken at their highest, fall far short of what would be required to show the GMC knew or ought to have known, of a "real and immediate" risk to the life of Dr Suresh.

The Threshold

253. In Maguire at [10] Lord Sales (with whom Lord Reed, Lord Lloyd-Jones and Lady Rose agreed) referred to the operational duty as:

"an obligation to take operational steps to protect a specific person or persons when on notice that they are subject to a risk to life of a particularly clear and pressing kind."

254. In his concurring judgment, Lord Stephens said this at [241]:

"241. Lord Sales JSC states that such an operational duty arises when the state is "on notice that [the specific person or persons] are subject to a risk to life of a particularly clear and pressing kind" (para 10 above). However, the criterion is a "real and immediate" risk to life. A real risk is one that is objectively verified and an immediate risk is one that is present and continuing; see In re Officer L [2007] 1 WLR 2135, at para 20. Lord Carswell in In re Officer L added that:

"It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high."

Those additional words were considered in Van Colle v Chief Constable of Hertfordshire Police [2009] AC 225. Lord Hope of Craighead in referring to Lord Carswell's words stated at para 66:

"I read his words as amounting to no more than a comment on the nature of the test which the Strasbourg court has laid down, not as a qualification or a gloss upon it. We are fortunate that, in the case of this vitally important Convention right, the Strasbourg court has expressed itself in such clear terms. It has provided us with an objective test which requires no further explanation. The question in each case will be whether on the facts it has been satisfied."

Lord Bingham of Cornhill also referred to Lord Carswell's words at para 30. Lord Bingham stated that "the test formulated by the Strasbourg court in Osman and cited on many occasions since is clear and calls for no judicial exegesis". I would caution that there should not be a domestic gloss on the Strasbourg criterion by using the phrase of "a particularly clear and pressing kind" in relation to "real and immediate risk".

255. In Fernandes de Oliveira v Portugal (2019) 69 EHRR 8, the ECtHR summarised the factors to which the Court has previously had regard when considering whether authorities knew or ought to have known that the life of a particular individual was subject to real and immediate risk. The list, omitting the citations, is as follows [115]:

"These factors commonly include:

i) a history of mental health problems;

ii) the gravity of the mental condition;

iii) previous attempts to commit suicide or self-harm;

iv) suicidal thoughts or threats; and

v) signs of physical or mental distress."

256. The application of those factors in De Oliveira appears at [125]-[132]. There, an underlying risk of suicide did not give rise to a real or immediate risk, the Court noting the need to interpret the positive obligation under article 2 in a way which does not impose an impossible or disproportionate burden on the authorities.

Submissions

257. Mr Mant submitted that in view of the generic underpinning of the Claimants' case, the threshold and the relevant factors outlined above, there were no prospects of the Claimants establishing constructive knowledge of a real and immediate risk to Dr Suresh's life. He submitted that on the evidence, the Trust did not even have such knowledge.
258. Mr Hyam KC placed significant emphasis in his submissions on what he described as the GMC's duty of enquiry: what the GMC ought to have known about Dr Suresh if it had made contact with the Trust. He submitted it was a matter for trial and investigation of the facts to ascertain what would have been learned about Dr Suresh's mental health and it cannot now be ruled out that he would have been identified as being at immediate risk of suicide. Mr Hyam also drew my attention to a letter written by Charlie Massey, Chief Executive and Registrar of the GMC dated 22 January 2021. This letter was a response to a letter written by Dame Clare Gerada, Chair of the British Medical Association Professional Regulation Committee, which had expressed disappointment that the GMC had not acknowledged "the real and immediate risk to life for any doctor subject to investigation (as suicide can occur in those not thought to be at risk)". In response the GMC's letter of 22 January 2021 stated:

"We absolutely acknowledge the real and immediate risk to life for any doctor subject to investigation and we are committed to continuing to improve the way we handle fitness to practise cases."

Application

259. Whilst this issue bears some similarities with the foreseeability issue discussed above, it is important to appreciate that what the GMC must have known, or what it ought to have known, is that there was a "real and imminent" risk to the life of Dr Suresh (viz a risk of suicide). It is not enough that psychiatric harm or self-harm is foreseeable. The risk must be of death and must be more immediate.
260. I agree with Mr Mant that, taken at its highest, the Claimants' pleaded case and evidence cannot establish the requirement that the GMC knew, or ought to have known, that there was a real and immediate risk to life of Dr Suresh.
261. It is correct that at §§33-34 the Claimants' particulars refer to generic factors. Indeed, at §34 the pleading pleads that the GMC knew or ought to have known that the Deceased "was at risk of [suicide]^[29] irrespective of any outward indication of a problem or psychological vulnerability on the part of the Deceased himself". As I have said above when dealing with the foreseeability issue, the Claimants can certainly maintain that the generic factors establish knowledge of a risk of psychiatric injury and even suicide where doctors are subject to disciplinary investigations. However, those factors do not go so far as to establish that such risks are "real and immediate" whether generally or in an individual case.
262. At this point it is convenient to deal with the GMC's correspondence of January 2021. Although the letter uses the language of "real and imminent risk to life", it adopts the terminology from the letter sent by the BMA. I am satisfied that the GMC was not using the language in a technical way corresponding to the standard set by the Convention, nor was it asked to do so. This is underscored by the fact the letter spoke of the risk to life arising "for any doctor". It cannot be said that every doctor subject to fitness to practise investigation is at "real and immediate" risk to life in the Convention sense. This is therefore a strong indicator the GMC was not using the language in that way. I therefore do not consider this exchange of correspondence forecloses, or even advances, the issues which the Court must decide.
263. The Claimants' case does not rest only on generic factors. It is important also to take into account §35 of the Particulars. There, the Claimants plead what the GMC would have known following inquiries with the Trust. The pleading specify "indications of vulnerability" on the part of Dr Suresh that would have been learned. These are set out at §35.3. They include learning that in April 2018 Dr Suresh was "visibly upset", the Medical Director at the Trust was "significantly concerned about [his] wellbeing" and that Dr Suresh had told the Trust about "the stress he was under and that he was suffering from disturbed sleep". Assuming that the Claimants can make out all the matters they plead, this cannot in my judgment establish knowledge, or constructive knowledge on the part of the GMC that there was a real and imminent risk to the life of Dr Suresh.
264. I have also considered whether there is a real prospect of establishing constructive knowledge on the part of the GMC of such a real and imminent risk to life at trial. I have taken into account all the evidence that is before the court as well as what might reasonably be expected to be placed before the Court at trial. In my view, however, there are no realistic prospects of successfully demonstrating constructive knowledge of a real and imminent suicide risk in Dr Suresh's case. Whereas the evidence provides a basis to support arguments that it was foreseeable that psychiatric harm or suicide was a risk for Dr Suresh, there is nothing in the considerable body of material before the Court, or to suggest evidence may arise at trial, to the effect that a risk of suicide was real and imminent. Of the Fernandes de Oliveira factors, only signs of mental distress are present in the evidence. Yet there is nothing to suggest suicide was imminent in the run up to the tragic events of 2 May 2018. That was also Dr Suresh's wife's view when she candidly told the Coroner that had she formed such a view, she would not have left him alone on 2 May 2018 (see paragraph 95 above).
265. It follows that for all of the above reasons, I am clear the Claimants cannot establish (at least) constructive knowledge on the part of the GMC of a real and immediate risk to the life of Dr Suresh, or alternatively that there are no real prospects of them doing so. I would therefore have struck out (or summarily dismissed) the claim on this alternative basis.

H. Conclusion

266. For the reasons given above, I am satisfied that the Claimants' claims in both negligence and under the HRA disclose no reasonable grounds for bringing the claims and should be struck out. In the alternative, the claims do not enjoy real prospects of success and fall to be summarily dismissed.
267. In addition to thanking counsel for their considerable assistance with this case, I would wish to offer the Court's condolences to the Claimants, and pay tribute to the dignified way in which they have conducted these proceedings.

Note 1   The order referred to there having been a first report dated 12 May 2022. I was informed the first report was disclosed to the GMC by the Claimants for the purposes of a mediation. It was not before the Court and the GMC did not pursue a submission that it should be disclosed as a condition of the Claimants relying on Professor Shaw’s report of 8 April 2024.    [Back]

Note 2   I have also had regard to the summary set out by Nicklin J in Amersi v Leslie [2023] EWHC 1368 at [142].    [Back]

Note 3   The evidence before the Court was that there were 375,344 doctors on the UK medical register as at 30 September 2023.    [Back]

Note 4   I refer in this section to guidance that was applicable at the time the police made the referral about Dr Suresh to the GMC – April 2018.    [Back]

Note 5   And also Rule 5 which concerns allegations falling within s35C(2)(c), viz where there has been a criminal conviction.    [Back]

Note 6   See Rule 4(4).    [Back]

Note 7   A list of “serious offences” appears at Addenda I of the document and includes “Sexual assaults”.    [Back]

Note 8   He referred to the information being included in a briefing to the Non-Executive Directors on 30 April 2018, but that was not a document routinely shared with him.    [Back]

Note 9   A statement dated 2 May 2018 was disclosed by the Claimants in these proceedings and was before Professor Shaw (§3.1 of her report).     [Back]

Note 10   The account given by the police in the investigation report is that on 2 May 2018 DS Clark called DS Campbell whilst she was off-duty, having taken a call from Elise Marsden of the GMC. The GMC were requesting confirmation that the referral information could be shared with Dr Suresh. Elise Marsden’s telephone note records her contact with DS Clarke being at 11.16am on 1 May 2018 and that, after speaking to DS Campbell, he rang her “straight after” to confirm the position. In any event, this confirmation was received before the letter of 2 May 2018 was sent.     [Back]

Note 11   The two exceptions are not directly relevant to the present case.    [Back]

Note 12   Per Lord Reed in Poole at [25]. The Court considered that long-established principles of the law of negligence had become eroded by uncertainty and confusion: Robinson [3].    [Back]

Note 13   As the Supreme Court explained, this had always been the position: see Robinson [32], Poole [26]    [Back]

Note 14   And see further Lord Reed’s judgment in Poole at [30].    [Back]

Note 15   In more detail, in the Hampshire case decided as part of the Capital & Counties plc appeals, the fire brigade had turned off a sprinkler system on arrival leading to the fire rapidly spreading out of control and destroying the premises. Had it been left on, and the fire brigade otherwise acted as it had, the premises would not have been destroyed. Turning the sprinkler system off made matters worse. By contrast in the other two appeals, the fire brigade failed to inspect premises where a fire broke out, and failed to extinguish a fire due to lack of water. In these two cases the brigade made things no worse than if they had not intervened at all: see Tindall at [27] to [30].    [Back]

Note 16   See Lord Hughes at [98].    [Back]

Note 17   Baroness Hale and Lord Hodge agreed with Lord Reed’s judgment. Contrast on this point the judgment of Lord Hughes in which he regarded the “several statements of the policy considerations, especially in three different decisions of the House of Lords” to be “simply too considered, too powerful and too authoritative in law to be consigned to history… Nor do I see it as possible to treat them as no more than supporting arguments” [113] and his conclusion that the “ultimate reason” why no duty of care is owed to victims, suspects or witnesses by the police when investigating and preventing crime “lies in the policy considerations” [118]. See also Lord Mance at [94].    [Back]

Note 18   Earlier passages of the judgment had seemed to suggest the police were generally under no duty of care when undertaking and performing their operational duties other than in special circumstances: see Robinson [66]-[67].    [Back]

Note 19   I would add that in my view the proceedings before the Interim Orders Tribunal (and other Medical Practitioner Tribunals) would qualify as quasi-judicial bodies.    [Back]

Note 20   The allegation did not fall outside the 5 year period set by Rule 4(5), and it plainly was not vexatious under Rule 4(3).    [Back]

Note 21   I am not concerned on this application with whether these allegations can be sustained by reference to the text of the letter sent by the GMC on 2 May 2018.    [Back]

Note 22   And see now HXA at [106-7] for some examples.    [Back]

Note 23   See also SXH in which Lord Toulson cited Calveley as authority for the proposition that “no duty of care is owed by the police towards a suspect”: [36].    [Back]

Note 24   InBrooks, Lord Steyn clarified that ‘assumption of responsibility’ was a reference to the principle outlined in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.    [Back]

Note 25   Baroness Hale and Lord Hodge agreed with Lord Reed’s judgment.    [Back]

Note 26   This is not technically a pre-Robinson case, but it is convenient to deal with it here.    [Back]

Note 27   Some care must be taken with deploying foreign law. For example in Canada the Anns v Merton approach remains dominant (cf the repudiation of the reasoning in Anns in this jurisdiction: see Robinson at [40]). This perhaps does not matter too much when it comes to considering how pure policy considerations were assessed by the Canadian Court.    [Back]

Note 28   As Lord Mance observed in Rabone it might be thought somewhat over-optimistic for the ECtHR to have described the pertaining circumstances as “well-defined” [117] see further Gardner at [231].    [Back]

Note 29   I substitute suicide for psychiatric injury when reading §34 alongside §40 of the Particulars for the purposes of the HRA claim.    [Back]