Dr M Hassaballa v General Medical Council: 2600211/2023

EMPLOYMENT TRIBUNALS

Case No 2600211/2023

Between

Dr M HassaballaClaimant

General Medical CouncilRespondent

Before

Employment Judge S Shore

Ms I Brown (instructed by Counsel) for claimant

Ms K Nowell (instructed by Counsel) for respondent

Date 27 June 2025

JUDGMENT

[1]The respondent’s applications are determined as follows: 1.1 The application to strike out the claimant’s claims on the grounds that the Tribunal has no jurisdiction to hear such parts of the claim for which the claimant has an alternative right of appeal, pursuant to section 120(7) of the Equality Act 2010, is refused; 1.1. The application to strike out the claimant’s claims on the grounds that the Tribunal has no jurisdiction to hear the claims as they are out of time, pursuant to section 123 of the Equality Act 2010 is refused; 1.2. The application to strike out on the grounds that the claims have no reasonable prospect of success is refused; and 1.3. The application for a deposit order is granted. 1 of 19

REASONS

[1]The claimant is a medical doctor and, as such, is subject to regulation by the respondent, which regulates all doctors in the United Kingdom.

[2]The claimant worked at Basildon University Hospital. He was investigated in 2018 but no action was taken against him following an investigation.

[3]Following a further investigation, on 9 June 2021, the claimant was informed that he would be subjected to a 24-month (reduced to 18 months on appeal) final written warning by his employer (Basildon University Hospital) that related to the way he practiced medicine. The claimant resigned his employment with Mid and South Essex NHS Foundation Trust (MSE), which encompassed Basildon University Hospital, on 25 October 2021.

[4]The claimant’s Responsible Medical Officer at MSE referred the claimant to the respondent. The matters were investigated by the respondent and will be referred to in this Judgment and Reasons as “the Trust Matters”. The respondent’s investigation into the Trust Matters were closed with no action on 16 August 2022.

[5]In December 2021, the claimant was alleged to have failed to complete a Work Details Form and return it to the respondent.

[6]The respondent opened a new investigation into the claimant in December 2021 in respect of the allegation that he had failed to complete a Work Details Form setting out where he worked and failed to return the same to the respondent. The Work Details Form enables the GMC to carry out its statutory function under section 35A(2) of the Medical Act 1983, which includes contacting a doctor’s other employers. The claimant was offered a warning for failing to complete his work details form but refused it and was referred to an Investigation Committee to consider if a warning should be placed on the claimant’s registration history. I will refer to this matter and the subsequent disciplinary matter together as the Dishonesty Matters. The investigation continued notwithstanding that the Trust Matters had been closed with no action. A hearing was set for 22 October 2022.

[7]Whilst preparing for the Investigation Committee hearing, the respondent became aware that the claimant was working for another NHS Trust; United Lincolnshire Hospitals NHS Trust (“UHL”) and had not informed that Trust that he was under investigation by the respondent for the alleged failure to complete a Work Details Form.

[8]The respondent’s Investigation Committee postponed its planned hearing on 22 October 2022 to consider the new information. The claimant presented his claim to the Employment Tribunal on 29 January 2023.

[9]The Investigation Committee sat on 27 and 28 February 2023. 2 of 19

[10]The matter was referred to a Medical Practitioner’s Tribunal (MPT). The MPT heard the case and, on 14 September 2023, determined that the allegations regarding the failure to return the Work Details Form, together with those relating to false representations on his employment forms were proven. It was determined that the Dishonesty Matters impaired the claimant’s fitness to practice and that the claimant should be erased from the register.

[11]The claimant alleges that the way that the respondent conducted the disciplinary investigations and processes was directly discriminatory because of his race and/or his sex. He has named 5 comparators but relies on hypothetical comparators as an alternative.

[12]The claim details are as follows: 12.1. The claim was presented on 29 January 2023 [19-30]. 12.2. Early conciliation Day A was 22 December 2022. 12.3. Early conciliation Day B was 17 January 2023.

[13]On 20 February 2023, the Tribunal sent the parties a Notice of Claim that listed the final hearing for 15, 17, and 18 April 2024 at Lincoln and made other case management orders on its own initiative.

[14]The case came before me at the Midlands East Tribunal on 24 April 2023. I made case management orders, which included transferring the case to East London ET and requiring the parties to set out any applications that they wished to be determined at a public preliminary hearing.

[15]My case management order dated 25 April 2023 [3-16] that was sent to the parties on 21 June 2023 contained a full agreed List of Issues [11-15] that set out the claimant’s claims of direct discrimination because of race and direct discrimination because of sex. Paragraph 24 of my order required the parties to make representations to the Tribunal and each other if they felt that the List of Issues was wrong or incomplete by 15 May 2023. I appreciate that the order was not sent to the parties until that date had passed, but no representations were received from either party from the date of the order being sent to them until the date of this hearing that suggested that the List of Issues was incorrect.

[16]I noted at paragraph 23 of the order that the claimant had provided sufficient further information at the hearing to obviate the need for further information about his claims from him. The respondent was given leave to submit an amended response by 15 May 2023.

[17]I listed a further public preliminary hearing (PPH) for the week commencing 13 May 2023 that did not take place because of the late service of the order on the parties (see below).

[18]At the hearing on 24 April 2023 the claimant withdrew all claims of harassment related to race, victimisation and detriment for making a protected disclosure, which were dismissed in a Judgement date 25 April 2023 [17-18]. 3 of 19

[19]The respondent presented an amended Grounds of Resistance [19-30] on 4 May 2023. The respondent applied for the claimant’s claims to be struck out on jurisdictional grounds, time grounds and on the grounds that the claims have no reasonable prospect of success. In the alternative, the respondent sough deposit orders in respect of the claimant’s claims.

[20]On 21 June 2023, Acting Regional Judge Adkinson advised the parties by letter that the case had been transferred to East London and that public preliminary hearing I had proposed for May 2023 would not take place: East London would make further orders. The final hearing listed for 15, 17 and 18 April 2024 was vacated.

[21]The purpose of the hearing was to consider whether: 21.1. The Tribunal has no Jurisdiction to hear those parts of the claim for which the claimant has an alternative right of appeal, pursuant to Section 120(7) Equality Act 2010 (“EqA”); 21.2. The claimant’s claim is out of time, pursuant to section 123 EqA and, if it was, whether time should be extended under the just and equitable principle; 21.3. The claimant’s claims have no reasonable prospects of success, pursuant to Rule 37(1)(a) of the Employment Tribunal’s Procedure Rules 2013 (“ET Rules”); 21.4. The claimant’s claims have little reasonable prospects of success, pursuant to Rule 39 of the Employment Tribunal’s Procedure Rules 2013 (“ET Rules”); 21.5. To make any further case management orders, including listing the final hearing. Housekeeping and conduct of hearing

[22]The hearing was conducted by remote video link. Dr Hassaballa had represented himself up to the date of the hearing but instructed Ms Brown through the charity, Advocate shortly before this hearing. Ms Brown’s involvement is limited to this preliminary hearing and Dr Hassaballa continues to represent himself.

[23]Prior to the hearing, the respondent had submitted a bundle of 193 pages, a copy of Michalak v GMC and others

[2017] UKSC 71

, and Ms Nowell’s detailed skeleton argument. If I refer to any of the documents from the 193-page bundle, I will put the relevant page numbers in square brackets next to the reference.

[24]Mr Hassaballa submitted two documents via Dropbox. I could not open one, because the firewall on the ET’s IT system detected a virus, but I was able to open the other. Ms Brown confirmed at the start of the hearing that the claimant was relying on neither set of documents, so I made no further attempt to view the claimant’s documents that I had been unable to see. 4 of 19

[25]Ms Brown submitted her submissions (which included a proposed amended List of Issues), a bundle of evidence concerning the claimant’s means and an authorities bundle at 8:08am on the morning of the hearing, having been instructed very late in proceedings. I find that Ms Brown had seen the respondent’s documents before she wrote her skeleton because she references Ms Nowell’s skeleton in her own document. The authorities bundle contained copies of: 25.1. Khan v GMC

[1996] ICR 1032

CA; 25.2. Chaudhary v Specialist Training Authority Appeal Panel and ors (No 2)

[2005] ICR 1086

CA; 25.3. Igboaka v Royal College of Pathologists

UKEAT/0036/09/SM

; 25.4. Uddin v GMC

[2013] ICR 793

EAT; 25.5. GMC and others v Michalak

[2018] ICR 49

UKSC; and 25.6. Ali v Office of the Immigration Services Commissioner

[2021] ICR 452

EAT.

[26]I considered all the documents and precedent cases submitted before making this decision.

[27]Having read Ms Nowell’s skeleton before the hearing, I thought it may be relevant for me to have a copy of the claimant’s ET1 in a previous claim he had issued against MSE on 13 April 2021 in respect of claims arising out of the Trust Matters, which was produced by the respondent after I emailed its representative.

[28]The hearing stated at 10:02am. Ms Brown opened the hearing by apologising for the late delivery of her three documents referenced above. Ms Brown suggested that further particulars of the claimant’s claims were needed. Ms Nowell said she hadn’t seen Ms Brown’s documents, so I adjourned until 11:45am to give her a chance to read and consider them. On the resumption, Ms Nowell confirmed she was ready and that there was no change in the respondent’s position in the light of the documents received from Ms Brown.

[29]Ms Nowell suggested that any change to the List of Issues would require the leave of the Tribunal but accepted that the changes were not major and were largely pleaded in the ET1. The respondent had comments about the comparators named.

[30]During the hearing, Ms Nowell sought to refer to a document in the claimant’s Dropbox file that I had been unable to open; a letter dated 17 October 2023. A copy was provided after the hearing by the respondent’s solicitor and copied to the claimant and both counsel.

[31]Ms Nowell also referred to a page from http://forebears.io concerning the claimant’s family name that her instructing solicitor provided a link. 5 of 19

[32]Following the guidance in the case of Cox v Adecco Limited

UKEAT/0339/19/AT

, I decided that my first task was to finalise the claimant’s list of potential claims. The proposed List of Issues produced by Ms Brown was materially different to that agreed at the hearing in April 2023.

[33]We worked through the proposed list that included the following amendments (using the numbering from the proposed List of Issues): 33.1. Paragraph 2.2.3 was the same claim as in paragraph 2.1.3 of the original LoI but worded in a different way. It concerned alleged breaches by the GMC of its policy by taking over 12 months to investigate the claim against the claimant; 33.2. Paragraph 2.2.4 was the same factual claim that the respondent ignored the claimant’s pleas to follow its own procedures and policies from November 2021 to August 2022 that had appeared as paragraph 2.1.4 of the original LoI but now relied on a hypothetical comparator; 33.3. Paragraph 2.2.5 was a different expression of the previous paragraph 2.1.5 from the original LoI concerning the allegation that the respondent had reinvestigate a claim that had already been concluded. Ms Brown acknowledged that the claim as now expressed was not as expressly pleaded by the claimant in his ET1; 33.4. The claimants of race discrimination were in the alternative to the claimant’s claims of sex discrimination because he says that he was treated less favourably than non-Sudanese doctors. There was no comparison based on his Black African ethnicity – it was his nationality.

[34]Ms Brown requested that the final hearing be conducted by CVP. I reminded the claimant of the rules regarding giving evidence by video from abroad and included a link to the Presidential Guidance in the case management order that has been sent to the parties separately.

[35]As the time points in the case would require an analysis of the evidence in the case, I decided that this was a matter that was best dealt with by the final hearing which would hear all the evidence.

[36]I dealt with the applications for strike out on the jurisdictional point under section 120(7) of the EqA and the strike out/deposit for no or little reasonable prosect of success.

[37]Ms Nowell made submissions first and relied on her extensive skeleton argument. We took a break at 1:00pm and resumed at 1:17pm with Ms Brown’s submissions. She relied on her extensive skeleton argument and spoke until 1:52pm. I had indicated that I would reserve my decision, given the complexity of the matter, but thought it was necessary to hear the claimant’s evidence of his means in case I decided to make a deposit order.

[38]The claimant gave evidence on affirmation and relied on the 12 pages of documents produced on the morning of the hearing. If I refer to any of the 6 of 19 documents, I will use the prefix “CB” and the relevant page numbers in square brackets (e.g., [CB 8-9]).

[39]As the claimant had not provided a witness statement, I allowed Ms Brown to ask him some questions. Ms Nowell then cross-examined the claimant. I asked the claimant a few questions before we finished the claimant’s evidence at 2:15pm.

[40]I made some case management orders and confirmed I would reserve my decision. The hearing closed at 2:30pm.

[41]Note – It is entirely my responsibility that it has taken far too long to produce this Judgment and Reasons, for which I can only offer my sincere and profound apologies to the parties and their representatives. Following the hearing, I had to deal with several personal matters that reduced the time I had available to complete what was a complicated decision, whilst also fulfilling my obligations to ongoing hearings and family duties. General Comments

[42]I have dealt with the matters of jurisdiction under section 120(7) of the EqA, the time points and the prospects of success in that order, although the circumstances and facts overlap. I have used my findings under one of the applications in the other applications where relevant.

[43]I have dealt with the claimant’s claim at its highest. I have considered the claimant’s case as being that which was put in the proposed List of Issues produced by Ms Brown for this hearing.

[44]I have considered the matters before me through the lens of the overriding objective; the relevant Rules of the Tribunal; and the statutory and precedent law. Jurisdiction - section 120(7) EqA

[45]It has never been disputed in these proceedings that at the times with which the claimant’s claims are concerned, the respondent was a qualifications body for the purposes of section 54 EqA. Neither has it been in dispute that qualifications bodies are prohibited from discriminating against individuals upon whom they have conferred a relevant qualification. S.53(2) EqA states that: “(2) A qualifications body(a) (A) must not discriminate against a person

(b) (B) upon whom A has conferred a relevant qualification— (a) by withdrawing the qualification from B; (b) by varying the terms on which B holds the qualification;

[46]The Tribunal’s jurisdiction under section 53 EqA is, however, subject to the provisions of section 120 EqA, which states: “(1) An employment tribunal has, subject to section 121, jurisdiction to determine a complaint relating to— (a) a contravention of Part 5 (work); […] (7) Subsection (1)(a) does not apply to a contravention of section 53 in so far as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal.”

[47]It is not disputed that: 47.1. The claimant issued Tribunal proceedings against his former employer (not the GMC) on 13 April 2021 claiming disability discrimination, unauthorised deduction of wages, race discrimination, religious belief discrimination, and sex discrimination. All were withdrawn by the claimant. 47.2. On 21 June 2021, the claimant’s former employer wrote to the claimant to advise him that he would be subjected to a 24-month (reduced to 18 months on appeal) written warning for the Trust Matters; 47.3. The claimant resigned on 25 October 2021; 47.4. The claimant’s former employer reported him to the GMC in respect of the Trust matters on 18 November 2021; 47.5. On 22 November 2021, the GMC’s Assistant Registrar promoted the complaint about the claimant to Stream 1, which required a full investigation of the allegations; 47.6. On 6 December 2021, the claimant was notified of the requirement to provide a Work Details Form. The respondent chased the Work Details Form on several occasions in early 2022. 47.7. On 23 February 2022, the claimant was advised that his failure to provide the Work Details Form would be investigated as a new matter. An Investigation Committee meeting to investigate the Work Details Form was scheduled for 14 October 2022. 47.8. On 16 August 2022, the claimant was informed that the Case Examiner for the respondent had concluded that the “reasonable prospects” test did not warrant ant further action in respect of the Trust Matter. The claimant was offered and refused a warning in respect of the Work Details Form. 47.9. On 14 December 2022, the Investigation Committee meeting was postponed again as the claimant’s alleged misconduct in failing to notify his then current employers of ongoing fitness to practice investigations. 8 of 19 47.10. The claimant started ACAS early conciliation in these proceedings on 22 December 2022 and obtained a conciliation certificate on 29 January 2023. These proceedings were presented on 29 January 2023. 47.11. It was not disputed that any act or omission that the claimant claims was less favourable treatment because of race or sex that happened before 23 September 2022 may not have been brought in time. 47.12. It was not disputed that, at the date of this hearing, the claimant could appeal any decision that the GMC may make in respect of the Dishonesty Matters. The MPT erased the claimant from the Register on 14 September 2023.

[48]I was invited by Ms Nowell to draw a clear line between the allegations that the claimant made concerning the respondent’s alleged malfeasance in relation to the Trust Matters and its alleged malfeasance in respect of the Dishonesty Matters (para 4 of her Skeleton).

[49]At paragraphs 41 and 42 of her Skeleton, Ms Brown addresses the continuing act point by firstly stating that the claimant referred to an act (and latterly and omission) by the respondent in October 2022 and December 2022 in his claim form and that these acts ‘anchor’ his claim as being in time. Ms Brown then went on to work backwards from these acts as being “an arguable case that there was a continuing act of discrimination which culminated in the act/omission in October and December 2022.”

[50]The claims themselves are described by Ms Brown in paragraph 40 of her Skeleton as being from box 15 of the claimant’s ET1 [15] as follows (with her emphasis): 50.1. “One day prior to my second hearing, which was supposed to be held in October 2022, I received a letter from the GMC informing me that they decided to postpone the hearing case”. 50.2. “I was expecting to receive an outcome of the adjourned hearing, but I did not receive any correspondence from the GMC in December 2022”.

[51]For the sake of context, I would note that the sentence before the reference to being told that that the GMC was postponing the hearing in October 2022 was: “In September 2022, the GMC decided to close my case with no further action but decided to implicate me in another case, as I was late to provide them with information about my employer at the time.”

[52]I therefore find that the two incidents relied upon in October and December 2022 that appear in paragraphs 2.2.9.1, and 2.2.9.2 (race discrimination) and 3.2 (sex discrimination) of the proposed List of Issues can only relate to the Dishonesty Matter. I make that finding because: 52.1. The claimant acknowledges that by September 2022, the Trust Matter had finished; and 9 of 19 52.2. The respondent advised the claimant that the Trust Matter would proceed no further and the only remaining matter at the time was the failure to complete and submit the Work Detail Form.

[53]The Work Details Form part of the Dishonesty Matter started on 6 December 2021 when the claimant was required by the respondent to submit the Form.

[54]Without hearing the evidence, I find that it would not be in the interests of justice for me to make a finding on whether there was conduct extending over a period but I have serious concerns that I will return to that the claimant will be able to show that the two disciplinary matters are part of a single line of conduct extending over a period.

[55]I will return to this point under the time point heading below and the strike out/deposit points below.

[56]Insofar as the jurisdictional question of section 120(7) is concerned, I find that the claimant’s claim relating to the Trust Matters is not about the decision of the respondent (as this would have been appealable) but is about the way that the respondent conducted that investigation.

[57]The claimant’s claim on the Dishonesty Matters is, again, about the procedure, not the outcome (which was not decided until 14 September 2023).

[58]The relevant statutory appeal from a decision of the GMC is that under section 40 of the Medical Act 1983, which states: 40 Appeals (1) The following decisions are appealable decisions for the purposes of this section, that is to say— (a) a decision of [a Medical Practitioners Tribunal] under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration […] (3) In subsection (1) above— (a) references to a direction for suspension include a reference to a direction extending a period of suspension; and (b) references to a direction for conditional registration include a reference to a direction extending a period of conditional registration. (4) A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was 10 of 19 served under section 35E(1) above, or section 41(10). below, appeal against the decision to the relevant court. (5) In subsections (4) […] above, “the relevant court”— […] (b) in the case of any other person, means the High Court of Justice in England and Wales. […] (7) On an appeal under this section from [a Medical Practitioners Tribunal] , the court may— (a)dismiss the appeal; (b)allow the appeal and quash the direction or variation appealed against; (c)substitute for the direction or variation appealed against any other direction or variation which could have been given or made by [a Medical Practitioners Tribunal]; or (d)remit the case to [the MPTS for them to arrange for] [a Medical Practitioners Tribunal] to dispose of the case in accordance with the directions of the court, and may make such order as to costs […] as it thinks fit.

[59]In this case, I find the case of Uddin the most helpful in assisting me make my decision on whether the Tribunal has jurisdiction under section 53 EqA to hear the claimant’s claims. I find the factual matrix in the Uddin case like this case in that both claimants were seeking redress from an Employment Tribunal for administrative and procedural action by the GMC. Paragraph 30 of the Judgment in Uddin makes it clear that there is no right of appeal under the Medical Act 1983 sections 40 or 38 that led up to but did not include the erasure of his name from the Register.

[60]Ms Brown did not reference Uddin in her Skeleton argument. Instead, her focus was on the Supreme Court case of Michalak v GMC and others

[2017] UKSC 71

and her attempt to split the claimant’s case into two distinct parts as discussed above. As I have explained above, I am unwilling to do that without hearing the evidence.

[61]I therefore refuse the application to strike out the claimant’s claims for lack of jurisdiction under section 120(7) ERA. Time and Amendment 11 of 19

[62]I have already indicated above that I do not find it in the interests of justice to determine the time points in this case without hearing the evidence. I would repeat the point made above, however, that the claimant may have some problems showing that there has been a course of continuing conduct that straddles both the Trust Matters and the Dishonesty Matters.

[63]There is extensive jurisprudence on the question of amendments to Tribunal claims. The authorities regarding amendments are set out in several cases including Cocking v Sandhurst

[1974] ICR 650

, British Newspaper Printing Corporation (North) Ltd v Kelly

[1989] IRLR 222

, Selkent Bus Co v Moore

[1996] IRLR 661

, Housing Corporation v Bryant

[1999] ICR 123

, Harvey v Port of Tilbury (London) Ltd

[1999] ICR 1030

, Ali v Office of National Statistics

[2005] IRLR 201

, Abercrombie v Aga Rangemaster plc

[2013] EWCA 1148

. It was most recently considered by the EAT in Vaughan v Modality Partnership

[2021] IRLR 97

[64]Mr Justice Underhill considered the appropriate conditions for allowing an amendment in Transport and General Workers Union v Safeway Stores Ltd

UKEAT/009/07

. In particular, he referred to the guidance of Mr Justice Mummery in Selkent Bus Company Ltd v Moore

[1996] IRLR 661

where he set out some guidance. That guidance included the following points: (4) Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:(a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels of facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal has to decide whether the amendment sought is one of a minor matter or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether the complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, Section 67 of the 1978 Act.

(c) The timing and manner of the application. [An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a 12 of 19 discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made; for example, the discovery of new facts or new information appearing from documents disclosed in discovery. Whenever taking any factors into account, paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision].”.

[65]In the Safeway judgment, Mr Justice Underhill also referred to the judgment of the Court of Appeal in Ali v Office of National Statistics

[2005] IRLR 201

where Lord Justice Waller referred to Mr Justice Mummery’s guidance in Selkent, pointing out that, in some cases, the delay in bringing the amendment where the facts had been known for many months made it unjust to do so. He continued: “There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time.” As Mummery J emphasised in Selkent: '…the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision'.

[66]In Evershed v New Star Asset Management

UKEAT/0249/09

, Underhill J stated that it was 'necessary to consider with some care the areas of factual inquiry raised by the proposed amendment and whether they were already raised in the previous pleading'. He carried out this exercise himself and concluded that the new evidence would be substantially the same as would be given in respect of the original claim, and, accordingly, allowed the amendment. The Court of Appeal approved this approach and agreed that the amendment did not raise 'any materially new factual allegations'. ‘[T]he thrust of the complaints in both is essentially the same'.

[67]In Chandhok v Tirkey

[2015] IRLR 195

, the Langstaff J referred to the importance of the ET1 claim form setting out the essential case for a claimant, as follows: “... The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1.” 13 of 19

[68]In Abercrombie & Others –v- Aga Rangemaster Ltd

[2013] EWCA Civ 1148

Lord Justice Underhill pointed out that the Selkent factors are neither intended to be exhaustive nor should they be approached in a tick-box fashion. There is nothing in the Rules or the caselaw to say that an amendment to substitute a new cause of action is impermissible. Further, at paragraphs 48 and 49 of the Abercrombie judgment, Lord Justice Underhill went to say: “Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted.... We were referred by way of example to my decision in Transport and General Workers Union v Safeway Stores Ltd (

UKEAT/0092/07

), in which the claimants were permitted to add a claim by a trade union for breach of the collective consultation obligations under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 to what had been pleaded only as a claim for unfair dismissal by individual employees. (That case in fact probably went beyond "mere relabelling" – as do others which are indeed more authoritative examples, such as British Printing Corporation (North) Ltd v Kelly (above), where this Court permitted an amendment to substitute a claim for unfair dismissal for a claim initially pleaded as a claim for redundancy payments.) It is hard to conceive a purer example of "mere re-labelling" than the present case. Not only the facts but the legal basis of the claim are identical as between the original pleading and the amendment: the only difference is, as I have already said, the use of the section 34 gateway rather than that under section 23. In my view this factor should have weighed very heavily in favour of permission to amend being granted. As the present case only too clearly illustrates, some areas of employment law can, however regrettably, involve real complication, both procedural and substantial; and even the most wary can on occasion stumble into a legal bear-trap. Where an amendment would enable a party to get out of the trap and enable the real issues between the parties to be determined, I would expect permission only to be refused for weighty reasons – most obviously that the amendment would for some particular reason cause unfair prejudice to the other party. There is no question of that in the present case.”

[69]More recently, in Vaughan v Modality Partnership

[2021] IRLR 97

at [24], HHJ Tayler reviewed the authorities on amendment. The following principles emerged: 69.1. the fact that an amendment would introduce a complaint which is out of time is a factor to be taken into account in the balancing exercise, but is not decisive [§15]; 14 of 19 69.2. the Selkent factors should not be treated as a checklist, but must be considered in the context of the fundamental consideration: the relative injustice and hardship in refusing or granting an amendment [§16]; 69.3. the Tribunal may need to adopt a more inquisitorial approach when dealing with a litigant in person [§19]; 69.4. that balancing exercise should be underpinned by consideration of the real, practical consequences of allowing or refusing an amendment [§21]; 69.5. It is important to consider the Selkent factors in the context of the balance of justice [§24] - a minor amendment may correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing; - an amendment may result in the respondent suffering prejudice because they have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim; - a late amendment may cause prejudice to the respondent because it is more difficult to respond to and results in unnecessary wasted costs. 69.6. where the prejudice of allowing an amendment is additional expense, consideration should generally be given to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it [§27]. 69.7. an amendment that would have been avoided had more care been taken when the claim or response was pleaded is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional cost; but while maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations, the key factor remains the balance of justice [§28].

[70]I followed the jurisprudence set out above when making my decision, Particularly, I considered all the circumstances and the balance of justice. I make the following findings: 70.1. The claims relating to October and December 2022 were set out by the claimant in his ET1. 70.2. I find that the exercise is one of rebadging as the claims were made in time. 70.3. On the Selkent points, I make the following findings:70.3.1 I find that this is a rebadging exercise.

70.3.2 For the reasons set out above, I find the balance of injustice and hardship supports the claimant’s position. 15 of 19 70.4 The claimant is not represented. 70.5 The real practical consequences of granting the application would be to potentially save the claimant’s case of alleged race and sex discrimination on the time points. 70.6 Following the guidance of HHJ Tayler, I find that the amendment sought is a major amendment. Granting the application would ‘correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing’. 70.7 The amendment sought is late and would cause the respondent more cost and expend more time. It would cost the taxpayer more expense. 70.8 The amendment would result in the respondent suffering prejudice because it would have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim. 70.9 I find that the prejudice cannot be ameliorated by an award of costs, or other sanction as the entire case now rests on granting or refusing the application. 70.10 I find that this amendment would have been avoided had more care been taken when the claim was pleaded or defined. That is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional cost. However, the key point is the balance of justice and hardship and I find that the injustice and the hardship is greater on the claimant than the respondent.

[71]I allow the amendment to the List of Issues (and therefore the claimant’s claims) as I find them to be rebadging exercises of matters already in the claimant’s ET1. I make that finding because, after balancing the prejudice to the claimant of denying the application to amend and the prejudice to the respondent of allowing it, I find that the greater prejudice is to the claimant. Strike Out/Deposit

[72]Rule 39 of the Employment Tribunals Rules of Procedure 2013 deals with deposit orders: Deposit orders 39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.

(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. 16 of 19

(3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.

(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.

(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise, the deposit shall be refunded.

(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.

[73]The consequences of a Deposit Order on a claimant who goes on to contest the claim are set out in Rule 76 (I have only reproduced the relevant part) – a claimant who loses a claim at a final hearing in respect of which they have been ordered to pay a deposit is treated as having acted unreasonably in pursuing the claim: When a costs order or a preparation time order may or shall be made 76.— (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively, or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; …

[74]In assessing the prospects of success of the claimant’s disability discrimination claims I took his claim at its highest. I also considered the overriding objective.

[75]I refuse the respondent’s application to strike out the claimant’s claims as I find that, although his claims at their highest are not strong, I cannot find that they have no reasonable prospects of success without considering the evidence. That will be a task for the final hearing. There are simply too many points of conflict on the evidence, not least the time points, that would be unwise for me to adjudicate upon without hearing the evidence tested under crossexamination. 17 of 19

[76]On the question of a deposit, however, I find that the entirety of the claimant’s claims have little reasonable prospect of success. Taking the claimant’s claim at its highest, he still has a significant number of evidential matters to prove on the balance of probabilities that I find mean that, when taken together, that his whole claim has little reasonable prospect: 76.1. The actual comparators that the claimant has chosen in his ET1 [30] do not appear to me to be proper comparators that met the requirements of section 23(1) of the EqA in that there are no material differences with the claimant save for the protected characteristic. 76.2. The height of the claimant’s claims is that the respondent did not investigate the comparators. It is significant that the claimant now seeks to rely on hypothetical comparators. 76.3. The claimant must show that there was a course of conduct spanning the period of his claims to October and/or December 2022. Those two claims appear weak in themselves, as it is difficult to see the detriment in being told that a new claim that has been added means that the existing claim cannot be heard. 76.4. The claimant may struggle to show the connection between the Trust Matters claims and the Dishonesty Matters claims. 76.5. The claimant’s excuse for failing to provide the Work Details Form appears weak. 76.6. I agree with Ms Nowell’s submission that the respondent’s decision to escalate the Trust’s disciplinary findings to a full GMC investigation was in breach of the respondent’s policies seems to be a claim with little chance of success.

[77]For the above reasons, I find that all the claimant’s claims of race and sex discrimination have little reasonable prospect of success and that a Deposit Order is appropriate.

[78]I was mindful of the requirement not to set the amount of the deposit to be paid so high as for it to be an obstacle to his obtaining justice. I heard evidence from the claimant about his means. I found his evidence to be vague, contradictory and both internally illogical and inconsistent with the documents he provided in evidence, which were entirely inadequate. The claimant’s bank statements showed one month of activity from 19 October to 18 November 2023 and showed £10.489.18 of deposits and £9,919.20 of outgoings [CB 2-8].

[79]There were three payments to the claimant of £1,000 each identified as “Borrowed Money” from Mohamed Hassaballa made on 27, 29 and 30 October 2023. The claimant said he had borrowed money for maintenance payments (£800) because he was not working. He could not answer what he had not applied to reduce payments if he had no income. He had pad £1.850.00 and £1,900.00 om PayPal. The claimant said these payments were for batteries so he could plug them in and store energy when the tariffs were low and then use the stored energy when tariffs were expensive. 18 of 19

[80]I found the claimant’s evidence not to be credible on his income and outgoings.

[81]The claimant also produced his application to Advocate, the charity that had provided his legal representation at this hearing [CB 10-11]. The document stated that he had £20 in savings, nil monthly income, and was expecting Universal Credit to start in November 2023, which I find to be unlikely if he is spending nearly £4,000 on batteries to store household electricity.

[82]The claimant said he had a car that was free of finance and worth £3,000.00.

[83]I find that it is just and equitable to order the claimant to pay a deposit as a condition of continuing his claims of £500.00 in respect of the claims or race discrimination and £500.00 in respect of the clams of sex discrimination. That is a total of £1,000.00.

[84]I have prepared a separate Deposit Order.

[85]I have also prepared a separate case management order. I have amended the dates that have passed since the hearing.

[86]Within his referral Dr Haider detailed a summary of his concerns which stated: Doctor has been subject of investigations locally at Basildon Hospital. Concern regarding a repetitive pattern of behaviors [sic] leading to allegations from multiple sources about inappropriate examination, unprofessional and inappropriate behaviors [sic] towards female patients. Concern about Conducting sensitive examinations in female patients without chaperone Potential Impairment due to: 1. Concerns about lacking insight in these matters 2. Repetitive pattern of counter complaints against witnesses 3. Potentially lacking insight about learning from clinical incidents

[87]To support the referral, Dr Haider included the following documents:87.1 The 2018 disciplinary outcome letter.

87.2 A timeline of concerns.

87.3 MHPS Investigation Report 2020.

87.4 MHPS Investigation Report 2021.

87.5 Disciplinary outcome letter of 9 June 2021 at Mid & South Essex NHS Foundation Trust.

87.6 Appeal Hearing outcome letter dated September 2021.

[88]Dr. Haider gave his title as Medical Director on the form.

[89]Dr Haider signed the following declaration: I am acting as Responsible Officer for my Designated Body, or on behalf and with full knowledge of the Responsible Officer confirm that:• The referral is made in good faith, based on all the information that is available to me at the present time.

• I have taken reasonable steps to ensure that the referral is fair and accurate. I agree with the above: Yes.

[90]The timeline of concerns detailed the Allegations from 2018, the allegations from February 2020 and the allegations from October 2020. We will refer to these as the “Trust Allegations.”

[91]This timeline also confirmed that the Claimant had been issued with a final written warning and the disciplinary and appeal letters showed that this was effective for 24-months reduced to 18-months on appeal.

[92]The referral document amounted to approximately 77-pages of reports and letters.

[93]We find that the referral was made by Dr. Haider as the Medical Director of the Trust. At the time of the referral, the Claimant had been redeployed to the Southend Hospital, which is part of the Trust, with Dr Mandeep Singh as his Responsible Officer.

[94]The GMC provides guidance to Responsible Officers (ROs), Medical Directors and other relevant staff to explain the threshold for referral to the GMC. This document is called GMC Thresholds and is dated July 2021. This states: 1 This guidance is for responsible officers (RO), medical directors and other relevant staff who are involved in the employment, contracting or management of doctors. It has been designed to clarify those matters where we can, and cannot, take action. This guidance explains the thresholds for referral to the General Medical Council (GMC). Our overriding obligation is to ensure public protection – we do not aim to resolve individual complaints or punish doctors for past mistakes, but rather to take action where we need to in order to protect patients, maintain the public’s confidence in the medical profession or maintain proper professional standards and conduct for the members of the profession.

[95]The GMC thresholds also states: 3 We can act on any information we receive from any source, which raises a question about a registered doctor’s fitness to practise. Common sources of information include patient complaints, referrals from responsible officers, employers, media reporting and notifications from the police and other bodies acting in a public capacity. Section 35C(2) of the Medical Act 1983 as amended states that a doctor’s fitness to practise can be impaired by any or all of the following: a misconduct b deficient professional performance c a criminal conviction or caution in the British Isles (or elsewhere for an offence which would be a criminal offence if committed in England or Wales) d adverse physical or mental health e not having the necessary knowledge of English f a determination (decision) by a regulatory body either in the UK or overseas to the effect that fitness to practise as a member of the profession is impaired.

[96]We find that the referral, at face value, reaches the GMC threshold for the conduct to be referred. This is because this threshold is very low as this is not the investigation stage. This referral information indicates repeat behaviours over a number of years where the Trust has issued a disciplinary sanction and it is being reported in by a Medical Director of the Trust. Additionally, the nature of the allegations are serious, if proven. Furthermore, the investigation to be carried out by the GMC is not the same as that which was carried out by the Trust. The purpose of the investigation by the GMC is to determine whether a practitioner’s fitness to practise, in this case the Claimant, has been impaired and whether the Realistic Prospect Test has been achieved. Telephone call

[97]On 29 November 2021 the Claimant submitted a crime report to Essex Police against Dr. Haider as he believed that he was a victim of intimidation and alleged that Dr Haider had done this before by sending him an intimidating email in November 2020. The alleged act occurred on 24 November 2021 at 1005 until 1015 and the Claimant was seeking an undertaking for Dr Haider not to contact him anymore.

[98]We find that on 24 November 2021, on balance, there was a conversation between the Claimant and Dr Haider. On balance, we accept the Claimant’s evidence that the conversation included reference to RMR Recruitment Ltd and locum work by the Claimant. Triage - Rule 4 decision

[99]Upon receipt of a complaint or referral, the GMC allocates that complaint to an Assistant Registrar (“AR”) to determine how best to proceed. This decision is to be made in accordance with the Rules. 4.(1) An allegation shall initially be considered by the Registrar.

(2) Subject to paragraphs (3) to (5) and rule 5, 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. (2A) Where the Registrar considers that an allegation does not fall within section 35C(2) of the Act the Registrar must notify the maker of the allegation (if any) accordingly.

(3) Where- (a) . . . (b) in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed; or (c) the Registrar considers that an allegation should not proceed on grounds that it is vexatious, he shall notify the practitioner and the maker of the allegation (if any) accordingly.

(4) The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of- (a) whether or not the allegation falls within section 35C(2) of the Act; (b) the practitioner's fitness to practise; or (c) the matters outlined within paragraph (5) below.

[100]The Respondent states that the purpose of the triage by the AR, is to review the allegation that has been made before making a decision as to the next steps.

[101]The Claimant states that the purpose of the triage by the AR is to review and question the allegations made and to confirm the details of the referrer to ensure that the allegation is well founded before a further decision is made.

[102]We find that we accept the Respondent’s position and that the purpose of the AR is to review the allegation and the supporting documentation as presented at referral.

[103]We find that the AR is not obliged at this triage stage to contact the referrer or to seek further documentation. The decision is made at face value on the documents alone.

[104]The AR has options available to them, these are:104.1 Promote the allegation to a full stream 1 investigation. This is the most serious action and is for those complaints that, in and of themselves would, if proven, raise questions about the doctor’s fitness to practise.

104.2 Promote the allegation to a Provision Enquiry (“PE”). This is where the GMC can make further enquiries before making a Rule 4(2) decision. This is limited to an initial enquiry and limited to finding one or two discrete and easily obtainable piece of information.

[105]In or about November 2021, the GMC provided Guidance for Decision Makers on Provisional Enquiries, which was dated November 2020, for the AR. The guidance provided gives the following definition of a PE: Part A – Overarching principles of Provisional enquiries Definition of a PE 1 A provisional enquiry involves obtaining limited and targeted information at triage to help inform a decision about whether the concern raised amounts to an allegation that a doctor’s current fitness to practise is impaired* and therefore requires a full investigation. 2 It is an initial enquiry which is usually limited to gathering one or two discrete and easily obtainable pieces of information. PE involving public interest concerns (PIC) may involve gathering more information because it is designed to safeguard doctors who have raised public interest concerns from retaliatory referrals rather than simply to clarify whether an allegation meets the threshold like other types of PE. Examples of information usually obtained during a PE include:  medical records  a coroner’s report or local investigation report  an expert opinion or advice from a medical case examiner. 3 A provisional enquiry does not require the decision maker to make findings of fact as a Medical Practitioners Tribunal (MPT) would. Instead, the process is about gathering and assessing information to determine whether an enquiry can be closed or if it should be promoted to a full investigation as the triage test is met.

[106]The purpose of a PE is to assess the risk to patients by a doctor’s impaired fitness to practise and the GMC states that the response to risk must be proportionate and targeted. The PE can assist to assess risk more quickly; it is not a full investigation. It is noted that a full investigation can follow after a PE.

[107]The Rule in relation to PEs is Rule 4(4) which is detailed in the guidance as Rule 4(4) 6 Rule 4(4)* provides an explicit power for the Registrar (delegated to Assistant Registrars) to make further enquiries before making a decision at triage under Rule 4(2). The Assistant Registrar (AR) can: ‘…carry out any investigations as in his opinion are appropriate to the consideration of: a whether or not the allegation falls within section 35C(2) of the Act; b the practitioner’s fitness to practise; or c the matters outlined within paragraph 5 … [this refers to Rule 4(5) the five- year rule].’ The test at Rule 4(4) 7 The test at rule 4(4) is not whether the realistic prospect test is met but whether the concerns appear to raise a question as to whether the doctor’s fitness to practise is impaired. 8 Where the allegation is clear and/or there is sufficient information to make a decision, the AR should make a decision to close or promote the allegation following the usual procedure at triage.

[108]When making the decision the Guidance for decision makers on provisional enquiries dated November 2020 directs the AR to consider the GMC’s overriding objective which is to protect the public. The guidance also states the following: Principles to be applied by decision makers 9 When making decisions as part of the Rule 4 process, decision makers should take into consideration the principles outlined below. c PEs should be proportionate and targeted to make sure we only promote allegations where necessary and we continue to investigate thoroughly complaints that raise serious concerns. This means limited enquiries that can be completed within a shorter period of time compared to a full investigation. This is with the exception of provisional enquiries where the doctor has raised public interest concerns (known as PIC PE) which are likely to take longer because they are designed to protect doctors who have raised public interest concerns from retaliatory referrals rather than simply clarifying whether an allegation meets the threshold like other types of PE. e PE is part of the triage process and therefore its focus is solely on whether the concerns raise a question about a doctor’s fitness to practise. f A PE should not be used to validate or further clarify a triage closure decision by obtaining more evidence to support it, if without access to PE it would otherwise have been closed. Enquiries should be closed if the concerns are not sufficient or not serious enough to amount to impaired fitness to practise. 10 In line with our statutory obligations, we are committed to making sure that our processes for dealing with concerns about doctors are fair. By setting out the approach and overarching principles that decision makers should consider in detailed guidance, we will promote impartial, fair and consistent decision making throughout the PE process.

[109]This guidance also provides assistance to the AR in relation to assessing suitability of a case for a PE. It provides as follows: PE suitability – general circumstances 3 Generally, allocation to a PE stream will be suitable where one of the following applies. a An allegation appears serious but the information we hold suggests aspects may be confused or based on a misperception or there may not be reliable evidence available to support it. AND e obtaining one or two discrete and easily obtainable pieces of information will clarify whether the concern raised amounts to an allegation that a doctor’s current fitness to practise is impaired.

[110]It also provides guidance as to unsuitability for PE as follows: PE unsuitability – general circumstances 4 A PE is likely to be unsuitable in the following general circumstances. f The concerns cannot be corroborated by independent evidence as the complaint is based on the complainant’s word against that of the doctor. A PE will not generally be appropriate if there is no potential third party evidence available to support or refute the concern.

[111]In making their decision, we have found that the AR will take the allegations within a referral at face value, unless a PE is undertaken.

[112]The Trust Allegations detail 4 specific allegations that include the following: 1 Conducted intimate examinations without chaperone. 2 Performed inappropriate, unusual, or unnecessary intimate examinations. 3 Made inappropriate comments during an intimate examination. 4 Has failed to demonstrate insight into concerns about his behaviour and clinical performance.

[113]The summary as prepared by the AR, Mr Benjamin Gratis, also states the I note the doctor’s FtP history which includes previous concerns about inappropriate examinations, though only one resulted in a warning, which was refused by the doctor. The RO has provided several investigation outcomes from 2018, 2020, and 2021 (as well as an appeal outcome). While not all the allegations are upheld and there was lack of evidence for some of the concerns, there overall appears to be a pattern of inappropriate or unusual intimate examinations and deviation from agreed protocols. In particular, one intimate examination was witnessed by a junior doctor where Dr Hassaballa allegedly massaged the patient’s clitoris and vulva inappropriately multiple times and that this examination was ‘weird’ and made her feel very uncomfortable around the doctor. The latest investigation resulted in a final written warning being issued to the doctor. I note reading the material provided that there seems to be a potential underlying concern about a possible sexual motivation for some of the doctor's actions, but I am also careful to note that there is not clear evidence to support this at this time. I consider these allegations at the least fall into a category of a persistent failure to provide appropriate care. Section 35C(2) of the Medical Act is engaged in relation to misconduct. Given the alleged lack of insight and the nature of the allegations, I consider it appropriate to promote this enquiry to Stream 1 NIT. ** Note regarding PIC: I note that the RO has provided information under the heading of patient safety concerns. I have carefully considered this and whether this may require PIC group involvement. However, from the information we have it, including the RO’s response to the doctor’s letter, it seems these concerns from the doctor were submitted after the investigation had begun and related to how the RO had carried out or handled the investigation. The doctor’s concern has been classified as a grievance. That information therefore does not seem to fall into the category of a PIC concern and given the serious nature of the allegations I feel it is prudent to promote this matter without delay. However, Stream 1 may wish to obtain a copy of Dr Hassaballa’s letter in which he laid out these concerns so that we can ensure we have considered this point fully. This enquiry is promoted to Stream 1 NIT

[114]For clarity, a referral, if promoted to a Steam 1 investigation can be allocated to the Regional Investigation Team (RIT) or to a National Investigation Team (NIT). This referral was allocated to NIT due to the seriousness of the allegations and the GMC legal team were involved from the outset.

[115]On this occasion the AR promoted the allegations to a full investigation, which is called a Stream 1 investigation. Guidance for categorising to stream 1 is provided by the GMC. The evidence available at this stage is limited to that within the referral itself. We find that at this stage; there was no independent evidence available.

[116]In relation to this referral not being reviewed by way of PE. We have considered the GMC guidance in relation to PEs and find that the allegations against the Claimant were, on the face of it, serious and that any further enquiry would require more than one or two discrete pieces of information. Additionally, the allegations suggest that there is one word against another. We find that this referral was not suitable for a PE. Given the serious nature of the allegations and the potential extent of the investigation required we find that, on balance, it was reasonable to allocate this referral to a Stream 1 investigation.

[117]At this stage, in November 2021, we find that the referral did not refer to Public Interest Concerns (“PIC”), and the AR had appropriately reviewed the referral by Dr. Haider in assessing the grievance to be a personal matter between the Claimant and Dr. Haider and not a PIC.

[118]The referral came into the GMC on 18 November 2021.

[119]Having considered the Guidance on categorising Stream 1 and Notify RO or Employers it states: 5 At the initial assessment point, we should not attempt to pre-empt the decision of the case examiners at the end of our investigations. In other words, it is not for the assistant registrar to apply the realistic prospect test. Rather, the test focuses on whether the issues are such that they require immediate investigation by the GMC or whether it would be more appropriate and proportionate for them to be considered locally in the first instance.

[120]The AR made the decision to refer the Trust Allegations to a Stream 1 investigation on 26 November 2021. In accordance with NIT, the GMC legal team allocated an Investigation Officer (“IO”) to lead the investigation as case owner. This was Ms Ogechi Iheanachor. We find that this referral was a reasonable

[121]The IO reviewed the AR’s decision and determined that the Trust Allegations should be referred for an Interim Order decision. IOT – Rule 6

[122]The Rule in relation to a referral to the Interim Order Tribunal (“IOT””) is Rule 6 of the Rules, which states: Referral to Interim Orders Tribunal 6.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.

[123]A referral to an IOT arises from s.41A of the Act which states: 41A Interim Orders (A1) Where a matter is referred under section 35C(8) to the MPTS, the MPTS must arrange for an Interim Orders Tribunal or a Medical Practitioners Tribunal to decide whether to make an order as mentioned in that provision. Where an Interim Orders Tribunal or a Medical Practitioners Tribunal in arrangements made under subsection (A1), or a Medical Practitioners Tribunal on their consideration of a matter, are satisfied that 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, the Tribunal may make an order— (a)that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding eighteen months as may be specified in the order (an “interim suspension order”); or (b)that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Tribunal think fit to impose (an “order for interim conditional registration”).

[124]Following a referral, an IOT can suspend or place conditions upon a registrant’s registration for up to 18-months.

[125]The IO completed a referral form, to refer this case to a Case Examiner to review.

[126]A Case Examiner is defined in the Rules as follows: "Case Examiner" means a medical or lay officer of the General Council appointed by the Registrar for the purposes of exercising the functions of the Committee, and "Case Examiners" means the medical and lay Case Examiners to whom an allegation is referred under rule 4(2), 5(2), 12(6)(b) or 28(2)(b) and includes any replacement Case Examiner appointed by the Registrar;

[127]The Guidance for decision makers on referral to an IOT, refers to decision makers but does not give any details. It states: Guidance for decision makers on referral to an Interim Orders Tribunal (IOT) Purpose 1 This guidance is to support decision makers in deciding whether a doctor should be referred to an Interim Orders Tribunal (IOT.) By setting out the relevant factors they should consider, the guidance aims to ensure consistency and proportionality in how decision makers approach IOT referrals. What does an IOT do? 2 Cases may be referred to an IOT by the Registrar or by a case examiner at any point after an investigation has been opened. 3 The role of an Interim Orders Tribunal (IOT) is to consider whether or not it is necessary for a doctor’s registration to be restricted on an interim basis, either by suspension or by imposing conditions on their registration.

[128]In evidence, we heard that in practice the decision maker to refer to IOT is a Case Examiner (“CE”). We find that this is in accordance with the GMC guidance.

[129]A CE reviewed the Trust Allegations on 26 November 2021 and confirmed that the case should be referred to an IOT in the interest of patient safety and in the public interest. The decision maker is named within the Investigation Plan as Alexandra Bourn.

[130]We heard in evidence from Ms Joanna Farrell that an IOT is an independent committee that consists of a legally qualified Chairperson, a medically qualified tribunal member and a lay member. We accept this explanation.

[131]The CE reviewed the Trust Allegations and noted which disciplinary matters had been upheld or dismissed. They also considered that the allegations appear to demonstrate a series of failures over a period of time and raises the potential of harm to patients. On balance the CE found that given the seriousness of the allegations and with reference to the guidance, they considered that there was sufficient evidence that patients could be at significant and ongoing risk if the Claimant was permitted to continue to practise. They found as follows: On the basis of the limited information currently before the GMC, I believe a reasonable and properly informed member of the public would be concerned to learn that if the allegations were later proven, the doctor had been permitted to hold unrestricted GMC registration while the investigation was ongoing.

[132]On 29 November 2021, the IO reviewed and updated the investigation plan, which was reviewed by a Legal Advisor on 9 December 2021. The plan provides for a target date for a CE decision as 19 August 2022. The target Rule 7 date, which is for the conclusion of the investigation, was set as 17 June 2022 and a review date was given as 23 March 2022.

[133]On 29 November 2021 the IO emailed the Claimant to confirm his email address to ensure that letters could be sent to him by this means. The Claimant confirmed his email address to the IO during a call the same day. He also informed the IO that the referral was discrimination and that he had an Employment Tribunal case running against Dr. Haider.

[134]On 2 December 2021 the IO updated Dr. Haider to inform him that the concerns in his referral were being investigated and that the GMC required further information from him by 16 December 2021. The GMC requested the following information:• Evidence of insight and remediation can reduce the need for us to take action. Please provide any positive information about the doctor’s insight and remediation that is relevant to the investigation.

[135]Dr Haider is also informed that the Claimant was due to attend an IOT on 16 December 2021.

[136]On 2 December 2021, the Claimant was informed by email that the GMC were investigating the Trust Allegations. We find that the Claimant was aware that he was being investigated by the GMC from this date. The GMC also informed the Claimant that the case had been referred to the IOT and gave important details of that referral, including the date. Additionally, the Claimant was required to complete a Work Details Form (“WDF”) to provide the following information:• Your responsible officer and designated body (or your suitable person).

• Where you provide services currently, within the last six months, and at the time the events giving rise to the concerns took place.

• Any locum or sessional work, including details of your agency and placements within the last six months.

[137]The Claimant was required to complete the WDF and return it to the GMC by 9 December 2021. The Claimant accepted in evidence that he had had to complete WDF’s previously.

[138]The email included the Notice of IOT Hearing, which was to be held on 16 December 2021 at 0930. Due to covid, this hearing was scheduled to be held via Microsoft Teams. This notice also required the Claimant to complete the WDF.

[139]The WDF requires the practitioner, in this case the Claimant, to complete and return the form within 7-days so that they can progress the investigation as quickly as possible.

[140]We find that it was reasonable for the GMC to require the Claimant to complete the WDF. Investigation

[141]The purpose of an investigation by the GMC in accordance with Rule 7 is to determine whether the fitness to practise of a practitioner is impaired as defined by s.35C(2) of the Act. The investigation will lead to a decision by two CE’s who make a decision under Rule 8 regarding the progress of the case.

[142]Once a referral has been promoted to an investigation, the GMC are obliged under Statue to complete their investigation to its conclusion with a Rule 8

[143]The Realistic Prospect Test (“RPT”) is a test applied by the Case Examiner or Examiners to determine whether the case against the practitioner, in relation to their fitness to practise, has a realistic prospect of success. The guidance to the CE and the Investigation Committee titled The Realistic Prospect Test is detailed in Annex A. It states: The “realistic prospect” test will apply to both the factual allegations and the question whether, if established, the facts would demonstrate that the practitioner’s fitness to practise is impaired to a degree justifying action on registration. It will reflect a genuine (not remote or fanciful) possibility. It is in noone’s interest for cases to be referred to a medical practitioners tribunal when they are bound to fail. On the other hand, cases which raise a genuine issue of impaired fitness to practise justifying action on registration are for the medical practitioners tribunal to decide.

[144]The RPT is assessed on the “balance of probabilities”, i.e. the allegation is more likely than not to be proven and the standard of proof is that of civil proceedings. However, it recognises that CEs will be working from documents alone.

[145]The relevant Rules following the Rule 4 decision are as follows: 7.(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.

(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.

(3) The Registrar may direct that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2. (3A) The Registrar may direct that the practitioner undertake an assessment of knowledge of English in accordance with Schedule 3.

(4) Where an assessment has been carried out in accordance with Schedule 1 or 2, the Registrar shall send a copy of the assessment report to the practitioner.

(5) Where an assessment has been carried out in accordance with Schedule 1, the Registrar shall send a copy of the assessment report to any person by whom the practitioner is employed to provide medical services or with whom he has an arrangement to do so.

[146]Rule 7 is considered alongside Rule 8. Rule 7 is the process of investigation, Rule 8 is the referral to CE’s to consider the next steps.

[147]Rule 8 states: Consideration by Case Examiners 8.(1) An allegation referred by the Registrar under rule 4(2), 5(2), 12(6)(b) or 28(2)(b) shall be considered by the Case Examiners.

(2) Upon consideration of an allegation, the Case Examiners may unanimously decide- (a) that the allegation should not proceed further; (b) to issue a warning to the practitioner in accordance with rule 11(2); (c) to refer the allegation to the Committee under rule 11(3) for determination under rule 11(6); or (d) to refer the allegation to the MPTS for them to arrange for determination by a Medical Practitioners Tribunal.

(3) The Case Examiners may unanimously decide to recommend that the practitioner be invited to comply with undertakings in accordance with rule 10(3) and, where they do so and the practitioner confirms he is prepared to comply with such undertakings in accordance with rule 10(4), they shall make no decision under paragraph (2) accordingly.

(4) As soon as reasonably practicable, the Case Examiners shall inform the Registrar of their decision, together with the reasons for that decision, and the Registrar shall notify the practitioner and the maker of the allegation (if any), in writing, accordingly.

(5) If the Case Examiners fail to agree as to the disposal of an allegation under paragraph (2), or whether to recommend that the practitioner be invited to comply with undertakings under paragraph (3), they shall notify the Registrar accordingly, and the Registrar shall refer the allegation for consideration by the Committee under rule 9.

[148]On 4 December 2021, the Claimant replied to IO and informed her that the Trust Allegations were not evidenced, that he had been unfairly treated and had an Employment Tribunal in progress against Dr. Haider. The Claimant requested more information regarding the hearing scheduled for 16 December 2021.

[149]On 6 December 2021 @ 0816 the IO informed the Claimant that the investigation was ongoing and that she had not informed him that the case was closed.

[150]At 1024 the same day, the Claimant requested documents from the IO, which were documents relevant as evidence in relation to the Trust Allegations. He attached a letter regarding his position as to the Trust Allegations. This letter also states that the Claimant was victimised by Dr Haider after a case of whistleblowing regarding babies under the Trust’s care.

[151]The letter also informs the IO that Dr Haider was not his responsible officer and requested that the case was closed.

[152]At 1628 the IO replied to the Claimant and explained the reason for the referral to the IOT. It was explained that the IOT do not make fact finding decisions regarding the Trust Allegations but will assess the risk posed if the Claimant were to continue to practise unrestricted during the GMC investigation.

[153]The email explained that the Claimant was able to make submissions to the IOT at the hearing and that the investigation was ongoing.

[154]On the 8 December 2021, the Claimant again emails the IO attaching evidence as to the Trust Allegations. He asserts that these cases were historical and that they had been investigated and discussed with the GMC liaison officer and were closed. He states that as there is no new evidence, these cases should not be investigated. He also included 15 testimonial letters, which had been prepared in 2019 and 2020 as part of his application for consultant status. He also referred the IO to a new guideline dated July 2021 guiding to only investigate cases if you have sufficient evidence.

[155]On the 9 December 2021, the GMC’s trainee solicitor, Mimi Evans-Agnew (MEA) emailed her supervisor, Ms Jenny McCourt with her first draft of the Investigation Plan (“IP”). Mr Chapman was the team manager. This IP proposed seeking their own witness statements from key witnesses first. Then a further investigation might be appropriate to obtain patient records and an expert report to consider whether the Realistic Prospect Test (RPT) was met.

[156]At this current stage, on 9 December 2021, MEA is initiating the investigation into the Trust Allegations. No decisions are made at this time as to whether the RPT is met as the GMC have not yet concluded their own investigation, which they are obliged to do.

[157]The RPT becomes relevant after an investigation is concluded as the Case Examiners will use this test to determine their decision as to how the case will proceed in accordance with Rule 8.

[158]During the investigation the IO can seek CE advice, but it is only advice at this stage.

[159]On the 15 December 2021, Dr Haider emailed the IO in response to her request for more information. He stated as follows: Thank you for your letter RE: Please provide any positive information about the doctor’s insight and remediation that is relevant to the investigation. 1. I have not seen any evidence of insight or remediation . Dr Hassaballa resigned from his employment at Mid & South Essex NHS Foundation Trust on 25th November 2021 quoting unfair warnings 2. In addition it has come to my knowledge that Dr Hassaballa has been working for locum agencies without informing the RO or the Revalidation office at the Trust

[160]In reply, the IO asked Dr Haider for details of where the Claimant had been working or working as a locum. IOT Decision

[161]The IOT hearing went ahead on the 16 December 2021. The Claimant did not attend, nor was he represented. The IOT had regard to an email of 13 December 2021 which stated: that he does not believe that the GMC should be investigating his case and that therefore in his opinion an IOT hearing is not required.

[162]The IOT determined that it was appropriate to proceed in the Claimant’s absence as he had voluntarily absented himself, which was in accordance with Rule 31.

[163]The IOT decided the following: In all the circumstances, the Tribunal was not satisfied, at this stage, that the concerns about Dr Hassaballa’s fitness to practise are sufficiently serious as to pose a real risk to patient safety or may seriously undermine public confidence in the medical profession if no interim order were to be imposed on his registration today.

[164]On 16 December 2021, Dr Haider replied to the IO informing her of the following: The concern with regards to Dr Hassaballa working for locum agencies without the knowledge of RO is fairly recent. 1. Concern emerged when Dr Hassaballa contacted Revalidation Office at the Trust on November 24th (see email MH – recommendation) 2. I was concerned with this information and immediately contacted him on Telephone (see file note in email titled MH) At this point, Dr Hassaballa has not informed us, where and how much locum work he has completed and on what dates

[165]Dr. Haider attached a file note of his call to the Claimant in this email to the IO. This file note is an email of 24 November 2021 which records that the Claimant was doing locum work through RMR Recruitment and that his last shift was at BARTS. Mandeep Singh was referred to in this email in that the email states “Mandeep, he may contact you.” The email records that the Claimant had resigned and that Dr Haider is advising him to speak to relevant managers regarding the possibility that he may be working when on annual leave or study leave and to confirm to the revalidation office about his locum work.

[166]On 17 December 2021, the IO chased the WDF from the Claimant and gave him until the 4 January 2022 to reply. In the letter attached to this email, the Claimant was informed that the GMC had received information from the Trust and required the completion of the WDF.

[167]On 17 December 2021, the IO repeats her request to Dr. Haider for the appendices to the Investigation Reports.

[168]By letter dated 17 December 2021, the IOT confirmed its decision to the Claimant.

[169]On 23 December 2021, Dr Haider provides the IO with the information requested, which included the interview notes, incident reports and other letters amounting to -76-pages of information.

[170]On 29 December 2021, Dr. Haider sent further documents to the IO including further witness statements. This amounted to a further 70-pages of documents.

[171]On 3 January 2022 the Claimant emailed the IO with further evidence to “confirm the nonexistence of any of the historical allegations in 2020 that were already investigated and concluded”.

[172]In this email, the Claimant informs the IO that he blew the whistle in January 2020 regarding maternal outcomes. The Claimant asked that the documents he had provided were considered and that the case was closed by 20 January 2022.

[173]By way of letter attached to the email of the 3 January 2022, the Claimant informed the IO that “I have not been performing any kind of locum job.” The Claimant asserts that there is no evidence for the GMC investigation and that there are no patient records and that the historical cases had been investigated and concluded in 2021, again asking for the case to be closed.

[174]On 13 January 2022, the IO emails the Claimant with a letter from MEA confirming that she was the GMC legal representative and that she was working alongside the IO in this case. She confirms that because the case had been promoted to an investigation, the GMC were obliged to investigate the Trust Allegations. She confirmed that this was an independent investigation from the Trust disciplinary investigations and that she would enable him to provide information and comments throughout. She also asked for copies of any Employment Tribunal decisions, so that these could be taken into account.

[175]On 13 January 2022, the IO and MEA discussed who should be approached as witnesses and their contact information. The IO emailed Dr. Haider on 14 January 2022 to obtain these contact details.

[176]On 14 January 2022, the IO again chased for the WDF and required a reply by 21 January 2022. This letter advised that: You must cooperate with formal inquiries and complaints procedures and must offer all relevant information while following the guidance in Confidentiality

[177]The Claimant replied to this email and stated that he hadn’t yet had any evidence as requested by him from the GMC. He gave details for the Tribunal hearing date (January 2023) and asked for an explanation for the full investigation when ”no factual or documentary evidence exists to any of the historical allegations.” The Claimant again asked for the case to be closed.

[178]The email from the Claimant refers to a “CQC Spotlight” but does not provide any further information.

[179]On 17 January 2022 the Claimant sent a formal complaint to the GMC. The Claimant’s complaint is about the following: 1- No steps were taken by the GMC to ensure the referral of the historical case from the former employer is appropriate before it was submitted (evidence attached). 2- Deciding to investigate a case when there is no evidence of its existence in the first place, no medical records, no witnesses, no complaints from patients, and no shred of factual evidence. 3- Referring the case to IOT, without any evidence of its existence, and when the case was already investigated by the hospital and concluded in 2021, thus breaching the GMC own policy of referral to IOT(evidence attached) 4- Assigning the case to a trainee solicitor, who decided to investigate without reading the documents sent to the GMC, misinformed the claimant (Dr. M Hassaballa) that the GMC investigate all referrals when the GMC investigate only 20 percent of referrals. 5- The claimant was asked by the trainee solicitor to produce documents that were already sent to the GMC before. (evidence provided). This confirms that the referred cases are not properly read, not scrutinised, and that there is a degree of bias by the GMC without any form of triage

[180]The Claimant expected the case to be closed by 20 January 2022. He included attachments, which identified issues at the hospital that had been raised by whistleblowers and articles in relation to GMC fairness. This amounted to 301- pages of documents. This complaint was forwarded to the Complaints department by the IO on 27 January 2022.

[181]On the 19 January 2022 Numaan Zeb, the IO’s manager, replied to the Claimant detailing the process and that he would be dealing with the Claimant’s correspondence. MR Zab stated: An Assistant Registrar considered this information and a copy of this was disclosed to you with our letter dated 2 December 2021. They made a decision that the concerns meet our thresholds for investigation and section 35C(2) of the Medical Act is engaged in relation to misconduct. In response to your claim that the decision to pursue a full investigation is based on no factual or documentary evidence, the threshold that is applied by our Assistant Registrar is, whether the allegations, if proven, are capable of establishing that your fitness to practise is impaired. It is not considered a determination of fact at this stage. The investigation will lead to establish whether the concerns are borne out by the evidence. In order to clarify to you the scope of our investigation, the allegations that have been promoted for investigation are that you: 1. 1. Conducted intimate examinations without chaperone. 2. 2. Performed inappropriate, unusual, or unnecessary intimate examinations. 3. 3. Made inappropriate comments during an intimate examination. 4. 4. Failed to demonstrate insight into concerns about your behaviour and clinical performance. Whilst I note you have requested we close down the case by 20 January 2022, our investigation will remain open until we have concluded our enquiries

[182]On 26 January 2022, the IO again sought to obtain a completed WDF from the Claimant, giving him until the 2 February to reply. She stated: I will refer you again to paragraph 73 of Good Medical Practice; you must cooperate with formal inquiries and complaints procedures and must offer all relevant information while following the guidance in Confidentiality. If you fail to comply with paragraph 73 of Good Medical Practice, we can consider adding this as a further allegation to the ongoing GMC investigation.

[183]On 28 January 2022 the Triage Manager, Rachel Morris, reviewed the Claimant’s complaint and noted that it had not yet had a full response. She also identified that from the documents attached to the complaint, it raised a possible PIC issue.

[184]Dr Haider emailed the IO on 28 January 2022 to provide the contact details as previously requested.

[185]On 29 January 2022 the Claimant responded to Mr Zeb, advising that his complaint had been sent to the CEO and again asked for the case to be closed within 5-days.

[186]On 31 January 2022 the Claimant emailed the IO and advised her that he had forwarded his complaint to Mr Charlie Massey, the GMC’s CEO, as the investigation was not in keeping with GMC guidelines. He also states that “I have also provided a reasonable explanation of why I do not agree or give consent, for you to contact my employers, and tarnish my reputation when the investigation into the case of unlawful investigation is now ongoing.”

[187]In evidence the Claimant stated that he was happy for the Respondent to contact RMR Recruitment Ltd, but this is not within the email of the 31 January 2022. Additionally, in evidence, the Claimant stated that it was for the Respondent to contact RMR Recruitment Ltd as they had these details as he stated that Dr. Haider had told them.

[188]We have found that the Claimant knew that he was under a GMC investigation from 2 December 2021 and that it was reasonable for the GMC to require him to complete a WDF in order to meet its statutory obligations. We also find that the Claimant had a personal obligation to complete the WDF in accordance with the GMC’s instructions and that he refused to do so.

[189]On 31 January 2022, the Respondent began enquiries into the allegations by the Claimant against Dr Haider. We find that this was a provisional enquiry as the Claimant’s allegations required one or two pieces of evidence to make a Rule 4 decision. We find that the complaint by the Claimant differentiated from the referral by Haider by reason of the extent of evidence provided and that the allegations against the Claimant had been investigated locally.

[190]The Respondent accepted that the Claimant believed that the referral may be due to a whistleblowing situation and referred the case to a Public Interest Concern Group (“PIC Group”) for an independent review. This was to be held on the 9 February 2022.

[191]We find that the details of the Claimant’s assertion regarding whistleblowing was brought to the Respondent’s attention on 17 January 2022 but did not detail that he was the whistleblower or what he was alleged to have said to the CQC. A PIC review was scheduled for 9 February 2022. We find that this was within a reasonable timeframe.

[192]The GMC continued to make investigative enquiries, but some witnesses were not willing to participate.

[193]Dr. Haider provided information as requested by the GMC including the grievance letter and details of other evidence he considered relevant to the Claimant’s insight (10 February 2022) . On 10 February 2022, Dr. Haider was also requested to provide 5 sets of patient records. PIC Group

[194]On 9 February 2022, the PIC Group reviewed the Claimant’s case. This panel is made up of senior managers of the GMC and members of the legal team. Ms Farrell was part of this Group and was copied into the outcome email but did not recall attending the meeting.

[195]The outcome of the meeting was that a decision could not yet be made and further information was required before the case could be returned to the Group for a further review. We find that at this time the PIC Group were unable to determine that the referral by Dr Haider was motivated by alleged whistleblowing by the Claimant and that it was reasonable to make further enquiries before making a decision. This is in accordance with the guidance for the PIC Group. Public Interest Concerns – Operational Guidance

[196]The PIC Group advised that the IO prioritised obtaining the relevant witness statements.

[197]Following the meeting, on the 11 February 2022 the IO wrote to the Claimant and he was informed of the outcome and further information regarding his disclosures was requested.

[198]On 23 February there is a further chase for the WDF. She stated: An experienced decision-maker considered whether your failure to complete your work details form raised new concerns, concluding that it needs to be investigated in more detail.

[199]The Claimant has refused to complete the WDF and has been given multiple opportunities to do so. We have found that it was reasonable for the Respondent to require the completion of this document by the Claimant, and we therefore find that, on balance, it was reasonable for the GMC to initiate a new investigation on 23 February 2022 in relation to the WDF to ensure that there are no ongoing risks to patients. (“WDF Allegation”). The Claimant received a formal letter advising him of this decision on this date.

[200]On 27 February 2022 the Claimant wrote to the IO and refused to give details of his discussions with the CQC but provided evidence that he believed was pertinent to his case.

[201]During February the GMC were able to obtain their own witness statements from several former colleagues of the Claimant. This acquisition of statements continued into March.

[202]We find that the GMC decision to seek witness statements first, given that the original allegations had been made by colleagues to the Trust and not patients, was a reasonable course of action and in accordance with the Respondent’s guidance. This was also in line with the investigation plan, which was reviewed and agreed by the PIC Group.

[203]On 4 March 2022, Stephanie Pollitt, Head of National Investigation, responded to the Claimant in full response to his complaints. The outcome of this letter was as203.1 That Ms Pollitt agreed that the information received in the referral supported the AR decision at the triage stage and that further enquiries were reasonable.

203.2 That a PE was not possible due to the volume of information required by the investigation and because an expert opinion may be required.

203.3 That the PIC concern was considered by the AR, but that the information available at that stage did not indicate a PIC concern, but a grievance. These concerns were now under review and further information had been requested.

203.4 That the GMC investigation was different to a local investigation as the GMC was tasked with determining the fitness to practise of registered doctors.

203.5 That his concerns were being taken into account.

203.6 That the IOT decision is not fact finding, but assesses risk, which is a different to the task of the GMC.

203.7 That with regards to race, previous audits had found no evidence of bias and that they continued to carry out regular, robust checks on the fairness of their decision making.

203.8 That with regards to disclosure, the GMC were in the process of obtaining witness statements and disclosure would follow.

203.9 That the WDF was required and that failure to provide this was nonengagement with the GMC process.

[204]On 19 April 22 a witness (SO) was requested to review a patient’s record for inclusion in her statement if necessary. We find that the GMC were endeavouring to obtain patient records.

[205]Delays in obtaining statements included witness availability and initial reluctance to participate.

[206]On 20 April 2022, the IO sought an update from the Claimant regarding the complaint to the Police. The Claimant replied to this email asking for an update and stated that there was no evidence and that this was all because of his whistleblowing and that the case should be closed. He did not provide information as to the Police complaint. The Tribunal was not provided with any evidence as to the outcome of this complaint.

[207]On 31 May, a case surgery was held with Mr Paul Hylton (CE). It was determined that:207.1 The patients could not be tracked down.

207.2 That the evidence was reliant on information from the Trust, which was mostly hearsay.

207.3 That the investigation into the Trust Allegations should be closed.

207.4 That it was not appropriate for a doctor to not respond to the GMC in relation to the WDF.

[208]The outcome of the case surgery was that an investigation would continue in relation to the WDF Allegation but the investigation into the Trust Allegations would be closed.

[209]On 1 June 2022 Mr Chapman emailed MEA as the WDF still had not been returned.

[210]On 14 July the Claimant was updated as to the process. WDF allegations

[211]On 23 February 2022 the GMC informed the Claimant that it was investigating his failure to return the completed WDF.

[212]The WDF allegation went to the 2 CE’s on 28 June 2022. Mr Hylton (Lay CE) and Mr James Watts (Medical CE) were both satisfied that the Claimant had wilfully failed to complete the WDF in accordance with the GMC’s instructions and that he had had previous experience in completing this document. Both CE’s agreed with the approach to offer the Claimant a warning for his conduct. This is permitted by Rule 11. Warnings 11.(1) If it appears to one or both of the Case Examiners that an allegation is one with respect to which he or they may wish to give a warning, he or they shall inform the Registrar, and the Registrar shall write to the practitioner to inform him that he is entitled to make written representations within the period of 28 days from the date of the letter.

(2) Subject to paragraph (3), if the Case Examiners are satisfied that the allegation ought not to be referred to the MPTS for them to arrange for it to be considered by a Medical Practitioners Tribunal and- (a) the practitioner has made no representations under this rule; or (b) after considering any representations made, the practitioner has not contested the facts upon which the allegation is based, they may if they think fit issue a warning to the practitioner.

(3) After considering any representations made by the practitioner, where- (a) the practitioner has requested that the allegation be referred for an oral hearing before the Committee; or (b) the Case Examiners otherwise consider it appropriate to do so, the Case Examiners shall refer the allegation to the Committee for an oral hearing in accordance with this rule.

[213]Mr Hylton explained the following: It is for the GMC to decide how it carries out its statutory duty in s.35A(2) of the Act, and it has decided to require a doctor to complete and return a WDF. Not only does the use of a WDF ensure consistency, and ensure that all the required information is requested, it also reduces the risk of a practitioner disclosing information to the GMC they should not disclose, be that due to Confidentiality guidance or Data Protection legislation. There is also a declaration by the practitioner in signing the WDF, that: ‘I have provided the GMC with accurate details of my current and previous work as required. I can confirm that I have provided these details to the GMC truthfully and in good faith. The WDF also leaves the doctor in no doubt that its completion does not mean their duty of disclosure during the investigation has ended at that point, as they also attest when signing the declaration, that: ‘I will let the GMC know immediately if any of my work details change.’

[214]At this stage the CEs agree that the seriousness limb of the test is not met, but stated: I agree that the seriousness limb of the test is not met. I also conclude, however, that the GMC cannot be seen by the profession, or by Dr Hassaballa, to have failed to take some form of action against a practitioner whose refusal to cooperate with his regulator frustrated the investigation of his fitness to practise, posed a risk to patients by virtue of the fact any potential locum employer could have been unaware a GMC investigation was taking place, and also prevented the GMC from fulfilling its statutory duties under s.35A(2) and s.35B(1) of the main piece of legislation governing its functions.

[215]On 21 July 2022 the Respondent wrote to the Claimant to confirm that their investigation was complete. The email included the relevant documents and offered a warning, the details of which were attached. The allegations stated as That being registered under the Medical Act 1983 (as amended): 1. On the dates set out in Schedule 1, the General Medical Council (‘GMC’) wrote to you requesting that you provide your completed Work Details Form (‘WDF’) and you have failed to provide your completed WDF to the GMC in response to these requests within a reasonable timeframe. And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.

[216]The draft warning was as follows: ‘On 2 December 2021, the GMC wrote to notify you it had opened an investigation into your fitness to practise, and enclosed a Work Details Form (‘WDF’) for you to complete and return. You were required to complete and return your WDF in order that the GMC could fulfil its statutory duties of disclosure under the Medical Act, and in order that it could carry out the next stage of its investigation. You were asked to complete and return your WDF by 9 December 2021, but you failed to do so. The GMC wrote to you on 17 December 2021, 14 January 2022, and 26 January 2022, repeating its request that you complete and return your WDF. It was also explained that you had a professional obligation to do so. You confirmed you were aware the GMC required you to complete and return your WDF, but also confirmed you would not do so. Your conduct as outlined above does not meet with the standards required of a doctor. It risks bringing the profession into disrepute and it must not be repeated. The required standards are set out in Good medical practice and associated guidance. In this case, the following in paragraph 73 of Good medical practice is particularly relevant: ’ 73 You must cooperate with formal inquiries and complaints procedures and must offer all relevant information while following the guidance in Confidentiality.’ Whilst this failing in itself is not so serious as to require any restriction on your registration, it is necessary in response to issue this formal warning. This warning will be published on the List of Registered Medical Practitioners (LRMP) in line with our publication and disclosure policy, which can be found at www.gmc-uk.org/disclosure policy.’

[217]We find that this is the bundle of documents and proposed outcome for both the Trust Allegations and the WDF Allegations. The proposed outcome being a warning, for 2-years, for the WDF Allegation only.

[218]The outcome letter confirmed the following:218.1 It included a bundle of documents for both the Trust Allegations and the WDF Allegations.

218.2 That the only allegation being decided by the CEs was the WDF Allegation.

218.3 That the investigation had been concluded.

218.4 That the Claimant may comment on the proposed warning and / or make representations to the CE regarding the allegations.

218.5 The letter details the effect of accepting the warning and the effect of refusing it, in that the allegation would be referred to the Investigation Committee (“IC”).

[219]The Claimant responded to the outcome letter and the Claimant refused the warning on the grounds that the investigation should not have occurred. This was on 25 July 2022.

[220]Due to the refusal the allegation was referred to the CEs.

[221]On 27 July 2022 the IO replied to the Claimant as follows: Dear Dr Hassaballa Thank you for your time earlier and my sincere apologies for the poor call connection. I was calling to see if I could explain the warning in more detail. I note in your comments that you appear to be reiterating that the investigation shouldn’t be open at all. However, the GMC warning is related to the fact that you didn’t provide the GMC with the work details form – which is completely separate. The other allegations on the case are not being taken forward. Please let me know if this has clarified any issues and if you will be accepting the warning. I look forward to hearing from you.

[222]We find that IO informed the Claimant that the Trust Allegations had been closed orally and by email, with effect from 27 July 2022 and he was afforded a further opportunity to accept the warning in relation to the WDF Allegation only.

[223]The Claimant provided the IO with a completed WDF on 28 July 2022 which he states was proof of his co-operation.

[224]On 31 July 2022, the Claimant wrote to the IO explaining that he had not carried out locum work whilst working with Basildon during the investigation.

[225]On 8 August 2022 the Claimant was informed that the case had been referred back to the CEs and that his emails had been forwarded to the CEs for consideration.

[226]The Claimant in his email on 16 August 2022 states: “It is now clear that there is no proof, in fact, there is now proof of a conspiracy against me in order to drive me out of the hospital. I would therefore appreciate it if you forward my email to the case examiner, and provide me with their contact email, as the oneyear investigation has led to a serious detriment on me.”

[227]On 16 August 2022 the Case Examiners reached a Rule 8 decision. The decision was in relation to the WDF Allegation only. As background that CEs considered the Trust Allegations and the outcome of the GMC investigation.

[228]The detailed outcome of the CEs decision includes confirmation that the AR had determined that on balance, there was insufficient evidence to raise a question of whether the Claimant’s fitness to practise was currently impaired. The CEs confirmed that they agreed to the closure of the Trust Allegations, but to issue a warning for the WDF allegations.

[229]The outcome of the CE Rule 8 decision was as follows: Conclusion For the reasons given above, we have decided the investigation concerning the allegations referred to the GMC by BTUH/M&SET should be closed with no action. We have also decided, for the reasons given above, that the allegation Dr Hassaballa had failed to complete and return his Work Details Form, should be referred to an Investigation Committee.

[230]This outcome was made on 16 August 2022 and sent to the Claimant on 23 August 2022.

[231]Notice of Hearing for the IC was sent to the Claimant on 23 August 2022.

[232]The Claimant confirmed on 27 August 2022 that he understood that the Trust Allegations had been closed with no further action. We find that the date on which the Claimant understood that the Trust Allegations was closed and notice of closure of the Trust Allegations is 27 August 2022.

[233]Within the email of 27 August, the Claimant confirmed that he could not attend the IC hearing on 14 October 2022 and submitted documents to be considered in his absence. Rule 7 investigation and Rule 8 decision for the Trust Allegations

[234]With regards to this Rule 7 investigation for the Trust Allegation, we find as234.1 The GMC wrote to the Claimant on 2 December 2021 to advise him of the allegations against him.

234.2 The GMC sent the Claimant copies of documentary evidence on 2 December 2021 for the IOT Hearing.

234.3 The GMC sent the Claimant the documentary evidence during the course of the investigation and the final disclosure bundle on 21 July

234.4 The GMC invited the Claimant to respond by 18 August 2022, which is 28-days after the documents were sent. The Claimant commented on 25 July 2022.

234.5 The covering letter to the bundle included a standard letter including details as to his opportunity to comment but does not does not inform the Claimant that his comments will be disclosed, where appropriate, to the maker of the allegation, contrary to Rule 7.

234.6 The AR and the investigation team carried out an investigation in accordance with Rule 4(4).

234.7 The GMC wrote to the Claimant on 23 August 2022 confirming that a decision under Rule 8 had been made and that the Trust Allegations would be closed because of the evidence that had been provided by the Trust was insufficient to reach the threshold of the RPT.

[235]The case in relation to the Trust Allegations was closed on 16 August 2022 and sent to the Claimant on 23 August 2022.

[236]We find that the investigation was carried out in accordance with the Rules and guidance except for the failure to inform the Claimant that any representations from him would be disclosed, where appropriate, to the maker of the allegation (if any) for comment, contrary to Rule 7(1)(d).

[237]With regards to this Rule 8 decision, we find as follows:237.1 We have found that the referral to a Stream 1 investigation was reasonable. We have also found that the investigation under Rule 7, with the exception of Rule 7(1)(d) was in accordance with the Rules and guidance. We find that this failure by the GMC was minor.

237.2 That the decision to close the case in relation to the Trust Allegations was a reasonable decision and made in accordance with the Rules and guidance. Initial referral to the IC

[238]The Investigation Committee is a function of the GMC. For Oral Hearings it can be called upon where the CE’s are minded to issue a warning by that the doctor disputed the facts in relation to the warning. Mr Chapman explained in evidence that The constitution and empanelment of the Committee is separate from the CE’s and legal functions, and we accept this evidence.

[239]The IC is made up of 3 Tribunal Members, one of whom being medically qualified. The Chair may be legally qualified, if not, a legal assessor is also present.

[240]The Investigation Committee was scheduled to hear the Claimant’s case on 14 October 2022

[241]The Claimant accepted that the referral to the IC was in relation to the WDF only on 27 August 2022.

[242]We find that this initial referral is in accordance with Rule 8(2)(b) and Rule 11(2) where the Claimant has refused a warning, i.e. contested the facts upon which the allegations is based. We are satisfied, on balance, that the allegations in relation to the WDF are in response to the Claimant’s conduct.

[243]On 8 September 2022, the Claimant emailed the IO with documents for consideration by the IC. He stated that he was not able to register his current employer’s details for reasons that are out of his control and that the case should be closed without warning.

[244]Within this email, the Claimant advised the follow:244.1 That he had not been a locum during the investigation at the Trust.

244.2 That he started work with the United Lincolnshire Hospitals NHS Trust (“ULHT”) on 26 October 2021.

244.3 That the warning would deprive him of the change to work.

244.4 That the case had been closed without further action.

244.5 That this warning was a retrospective warning for a case that is closed.

[245]We find that the WDF Allegation is in relation to the Claimant’s conduct during the course of a reasonable investigation and that the Claimant was required to complete the WDF as requested by the GMC but refused to do so.

[246]On 15 September 2022 the GMC sent the Claimant the draft bundle for the IC hearing. The Claimant was invited to comment on the bundle and to provide any further evidence, including oral evidence, should he wish to do so.

[247]On 15 and 16 September 2022, the Claimant sent in further evidence and questioned why there was to be a hearing.

[248]On 16 September 2022, the GMC noted that the Claimant still had not completed a WDF but had sent in new employer information only. They were also concerned that the question of locum work during the GMC investigation remained to be answered.

[249]On 20 September 2022 IO emailed the Claimant to clarify the purpose of the IC hearing and that it was as a consequence of his failure to complete the WDF despite the GMC warning him of the consequences of not doing so. They also invited the Claimant’s comments on Dr. Haider’s assertion that he was doing locum work in December 2021. In reply the Claimant asked for a copy of the WDF as he would be “happy to fill it in.”

[250]On 20 September 2022 the GMC received advice from Counsel in relation to the case. Counsel was concerned that the failure to disclose locum work was deliberately misleading and may amount to a more serious allegation. They advised contacting the recruitment agency retailed in Dr Haider’s email.

[251]By way of further enquiry, the GMC emailed RMR Recruitment who, by return email, confirmed that the Claimant had carried out locum work between Oct 21 – March 22.

[252]Following the disclosure by RMR Recruitment, the GMC considered whether it could add a new allegation given that the IC had already been scheduled.

[253]Given the new information, the case was sent to Stephanie Pollitt to review. Her initial thoughts were that the IC would proceed in relation to the WDF only as there could have been confusion rather than dishonesty. We find that this was a reasonable course of action at this time.

[254]On 27 September 2022 MS Pollitt determined that they would not pursue the allegation of dishonesty given the ambiguity of what the Claimant has told the Trust. She deemed this to be a proportionate response. Given that the GMC now knew that the Claimant was working at the ULHT, the GMC would write to the ULHT to inform them of the ongoing investigation. The Claimant would be told this. We find that this is a reasonable course of action, in line with the Rules and guidance. ULHT Allegation

[255]On 28 September 2022 the IO emailed the Claimant to inform him that now that they knew he was working at the ULHT, the GMC would write to them to inform them of the IC hearing. The email also confirmed that the IC hearing would proceed on the basis of the failure to provide the WDF as previously detailed.

[256]On 3 October 2022, the IC wrote to the ULHT to inform them of the upcoming IC hearing and the reason for that. The Acting Medical Director of UHLT, Mr Paul Dunning, responded that he would be attending the hearing.

[257]On 4 October 2022, Mr Dunning emailed the IO confirming the dates on which the Claimant had worked for the Trust, including locum work. He also included the Model A form where the Claimant, on 29 January 2022, had replied “no” to the following: Are you currently subject to a fitness to practise investigation and / or proceedings of any nature by a regulatory or licensing body, which may have a bearing on your suitability for the position you are applying for?

[258]The Model Declaration Form A is required for the assessment of a person for their suitability for NHS appointments, in this case at the UHLT. It includes declarations as to criminal records, convictions, fraud, dismissals, and the 7. Are you currently subject to a fitness to practise investigation and/or proceedings of any nature by a regulatory or licensing body, which may have a bearing on your suitability for the position you are applying for? This may include any fitness to practise investigation and/or proceedings of any nature that are being undertaken by a regulatory or licensing body in any other country. If you have ticked YES, please provide the reasons given for the investigation and (where applicable) the details of any warnings, conditions or sanctions (including limitations, suspension or any other restrictions) that apply to your professional registration and, the name and address of the regulatory or licensing body concerned. You may use the continuation sheet attached if necessary – please indicate which question information relates to, if doing so.

[259]This form is signed by the Claimant with a statement of truth and is dated 29 January 2022.

[260]The Claimant replied “No” to this allegation. In evidence, the Claimant said that this question was confusing and that it should have been broken down for more clarity.

[261]We find that the question is very clear and we have also found that the Claimant had been informed by the GMC that he was under investigation on 2 December 2021. This letter included a request for a WDF. On balance we find that the Claimant was aware that he was under a GMC investigation before the date on which he completed this form.

[262]We find that the information provided by ULHT was a response in relation to the Respondent’s enquiries. The PSA requires the GMC to accept concerns raised by anyone. We find that it was reasonable for the GMC to accept this additional information.

[263]On 4 October 2022, MEA emailed Paul Hylton, CE, for a Case Surgery in relation to this new information from ULHT. We find that this is in accordance with the guidance.

[264]The new information was given to Mr Hylton and he outlined his concerns in that the new information, if proven, would imply that the Claimant had been dishonest in his comments to the GMC in relation to his locum work and that he knew he was under investigation when he completed the Model A form. Mr Hylton he advised that the referral to the IC as listed, was referred back to the CE under Rule 28 so that the CE could make a Rule 28 decision. He also advised that the IC hearing should not go ahead.

[265]Rule 28 provides that once an allegation has been referred to the IC and before the opening of the IC, the AR can refer the case to a CE to determine whether to withdraw the allegation or any part of it. Withdrawal would mean complete withdrawal and the closure of that part of or that allegation in its entirety. The practical effect was that if Rule 28 was applied and the WDF allegation withdrawn from the listed IC hearing, it would not be possible to include the WDF allegation within in any new allegation to be put to the IC.

[266]On 4 October Mr Hylton was specifically asked if he had had the UHLT information when the CE decision was made, would this have impacted his decision to offer the doctor a warning.

[267]On 5 October MEA raised concerns about the Rule 28 process as the only option was to withdraw it and the GMC might want to consider these allegations alongside new allegations of dishonesty.

[268]In evidence, Mr Chapman confirmed that this was an unusual situation. We accept his evidence. He explained that the GMC did not want to drop the WDF allegation, but he considered that the allegation from ULHT was so serious it warranted inclusion.

[269]On 6 October the Claimant was informed that the ULHT had provided further information that was being considered.

[270]On the 6 October the AR made a Rule 4 decision that the Claimant had been untruthful on more than one occasion and that this further incident should be investigated under the current case.

[271]On 7 October 2022, the Claimant was informed of this new ULHT information and was given 28-days to provide any comments. He was told that there would be an investigation. We find that, on balance, a Rule 4 decision has been made and that a Rule 7 investigation was to start.

[272]On 7 October MEA emails the IC to seek a postponement. She explains that they were in receipt of new information that has been promoted to investigation (Rule 4). She informed the IC that there were concerns of probity that are linked to the allegation due to be heard by the IC next week and that this information had just been disclosed to the Claimant.

[273]On 10 October the IC committee Assistant wrote to the Claimant and IO to confirm that the GMC had requested that the hearing was postponed and that this would allow the Claimant to comment on whether he wanted the hearing to go ahead. We find that the Claimant was aware of the new information from ULHT that was being investigated by the GMC.

[274]The Claimant replied on 11 October 2022 informing the IC that this was all related to the Trust Allegations and questioned how a case of probity could apply as he had provided all of the information required. He goes further to state he had completed forms as requested and that he didn’t know he was under investigation but believed it to be a case review of a historical investigation. He asked that the case was closed and the hearing cancelled.

[275]On 12 October 2022, an independent IC Chair (Ian Kennedy) postponed the hearing as follows: On the basis of new evidence being provided and the GMC requiring further time to consider the new information I do not have a proposed re listing date for this hearing and will be in touch with the case owner to consider an appropriate course of action for the IC in this matter.

[276]The Chair determined as follows: In considering whether to adjourn I have considered whether it is in the best interests of justice. Having reflected on the comments of the GMC and Dr Hassaballa, I have decided that an adjournment is appropriate to enable the matters to be properly considered. It is in everybody’s best interests to allow the GMC to fully understand the ‘new’ issues raised and how that affects the case to be heard in front of the Investigation Committee, prior to it going ahead. The matters were only comparatively recently discovered, which came about as a result of fresh information from the doctor which he had not previously disclosed.

[277]On 12 October 2022, prior to being informed of the postponement, MEA informed Mr Hylton (CE) and Mr Chapman that they were seeking Counsel’s advice as to how to proceed. She references a single case where information had been received at a similar stage and that the IC allowed the promotion of the allegation to be heard directly at the IC hearing, effectively, bypassing Rules 4, 7 and 8.

[278]On 13 October 2022, the IO informed the Claimant that the new concern was being investigated. He was again asked for information in relation to his CQC disclosure. The Claimant provided CQC documents on 14 October 2022. These documents show that the Claimant was in correspondence with the CQC in April, May and June 2021. The correspondence indicates that the Claimant had complained about Dr. Haider in relation to serious incidences in the unit and that he believed that he was victimised because of it. We find that this was the first evidence of potential PIC concerns the Claimant raised with the respondent.

[279]On 19 October 2022 following further emails from the Claimant to the IC, the IC again confirmed to him that the Trust Allegations had already been closed with no further action.

[280]On 25 October 2022 Mr Dunning provided the GMC with a witness statement.

[281]On 31 October 2022, having received Counsel’s advice, MEA emailed Mr Chapman and informed him that Counsel was of the opinion that the current case had strong similarities to the Judicial Review of Rudling v GMC. In this case, Mr Chapman explained in evidence, the IC had allowed new evidence and new allegations to be admitted into the IC when they had not been through Rule 7 and Rule 8. In effect, Rule 11(6)(c) permitted the inclusion of new evidence during the hearing. It states: (6) The Committee shall consider any allegation referred to it under paragraph (3) or (4), and shall-(a) determine that the matter should not proceed further;

(b) dispose of the allegation by issuing a warning; or

(c) where new information adduced into evidence at the hearing indicates that to do so would be appropriate, refer the allegation to the MPTS for them to arrange for determination by a Medical Practitioners Tribunal.

[282]Further to the advice from Counsel, the GMC wrote to the Claimant on 7 November 2022 to inform him that their intention was to introduce this new evidence under Rule 11(6) giving him 14-days to comment, being 21 November

[283]On 11 November 2022, the hearing was rescheduled for 14 and 15 December 2022 by Teams. The Notice of Hearing is sent to the Claimant on 15 November giving more than 28-days’ notice. Within the notice the Claimant was informed of the possible outcomes available to the committee which were: What can the Investigation Committee do? The Investigation Committee can:• Decide to close the case with no further action

• Decide to issue a warning

• Refer the matter to a Medical Practitioners Tribunal of the MPTS because of new evidence that was presented at the hearing. The GMC will be asking the Investigation Committee to refer the matter to a Medical Practitioners Tribunal of the MPTS because of the new evidence that was received from the Trust.

[284]The Claimant was provided with the opportunity to comment and to confirm his attendance. He was also provided with the bundle of evidence on 16 November

[285]On 18 November MEA emailed the Claimant to confirm that the allegations were as follows:• Your failure to return the work details form to the GMC

• Your failure to answer “yes” to the question of any ongoing fitness to practise investigations in the model declaration form for United Lincolnshire Trust.

[286]On 18 November 2022 the Claimant emailed MEA as he did not believe that the threshold for the investigation had been reached and he again raises the Trust Allegations.

[287]Following further emails from the Claimant in relation to the Trust Allegations, MEA again assures the Claimant that the IC is in relation to the WDF and the ULHT allegations only. This was on 7 December 2022.

[288]On 8 December 2022 there was a case surgery with Mr Hylton. The outcome of this meeting was that it was believed that the information provided by the Claimant to ULHT may be misleading, but that it was an isolated incident and that the tribunal may have some sympathy with his belief that he was being persecuted. It was proposed that the Respondent changed its position and asked that the IC were approached to offer a warning. Mr Hylton agreed with this approach.

[289]On 8 December, the IC committee assistant advised the GMC that they should prepare a draft warning, but that ultimately the decision rested with the IC.

[290]The GMC prepared an amended warning and send this to the Claimant on 13 December 2022. We find that this was not a warning which the Claimant had the opportunity to accept as he had already refused the original warning and this allegation had already been promoted to the IC. This new warning was to take the new evidence into account, but ultimately the decision rested with the IC.

[291]In evidence it was suggested by the Claimant that the IC was being directed by the GMC. We find that it would be appropriate for any professional advocate to provide a Tribunal with a draft of a proposed outcome.

[292]On 14 December 2022, the IC raised with the GMC the question as to whether the GMC considered whether the Claimant’s fitness to practise was impaired based on the new allegations. We find that it was the IC who instigated the impairment consideration, which they are entitled to consider.

[293]On 14 December 2022, Mr Hylton confirmed to MEA the following: My view is that if the information from the Lincolnshire Trust had been known to the case examiners at the time we considered the case, we would have referred it to the MPTS. However, there was no mechanism open to the GMC that we were aware of to cancel the IC referral without closing the WDF case with no action, which we did not think was the correct decision for the case. Therefore, all the GMC could do procedurally was to do what we have done. However, the IC consider matters afresh, without deference to the case examiners’ decision to offer a warning. So, if they believe the combined matters should be referred to the MPTS, they are entitled under the rules to do so. And personally, I would agree with that decision.

[294]Having considered the evidence as presented, we find that the process available to the GMC was limited and that a proposed warning was reasonable in these circumstances. We find that the IC have exercised their power, at this stage and before making a final decision, to consider whether the allegations reach the threshold for impairment.

[295]The IC met on the 14 December 2022 and they were concerned with the lack of notice regarding the draft warning and that the Claimant’s fitness to practice may be impaired. The IC raised questions of the GMC, which required answers before any decision could be made. Counsel for the GMC submitted that it was not fair to proceed in the Claimant’s absence given the background and the change to the proposal by the GMC.

[296]The IC raised preliminary points with the Respondent as follows:296.1 Had the Claimant had sufficient time to consider the warning? The GMC replied that the wording was a proposed draft to assist the IC should it decide to issue a warning. With regards to the WDF allegation, the GMC position was unchanged. With regards to the ULHT Allegation, it was for the IC to determine if this amounted to dishonesty.

296.2 Had the decision on 6 October 2022 been revised? The GMC replied that the decision of the AR was unchanged and has not been revised.

296.3 The Rules state that the Fitness to Practice impairment should not be before the IC? The GMC confirmed that a warning had been offered and refused, which was why the matter was before the IC. We find that this was reference to the warning in relation to the WDF Allegation only in July 2022.

296.4 Did the GMC submit that the doctor’s fitness to practise was impaired or not and was the doctor clear about this? The GMC responded that the doctor was aware of the original position from 7 November, but that the revised approach was sent to him on 13 December. The GMC sought to adjourn the hearing to be fair to the doctor.

296.5 The IC asked for further comments, to which the GMC responded that it was seeking a ruling on the law about whether a future IC will have the power to refer to a FtPT in light of the wording in r.11(6)(c)

[297]The Committee were not satisfied that the Claimant had a clear understanding of the GMC’s position and that it was fair to postpone allowing time for the Claimant consider this. The hearing on the 14 December 2022 was then postponed.

[298]The GMC asked that the Committee make a ruling as to whether it could make a decision under Rule 11(6)(c) and refer directly to MPT and that the committee was considering this.

[299]It was submitted by the Claimant that the IC had been misled. We have carefully reviewed the relevant documentation, and we are satisfied that this record shows that the IC was not misled and that the GMC acted fairly in asking the IC to adjourn to ensure that the Claimant had every opportunity to prepare his case. Additionally, that the GMC were open in regard to the Respondent’s requests regarding the wording of Rule 11(6)(c) and that this had been communicated to the Claimant in the correspondence of 7 November 2022.

[300]We find that the decision to postpone was fair and reasonable within the circumstances.

[301]On 16 December 2022, the GMC wrote to the Claimant to inform him of the postponement and the reason for it.

[302]On 22 December 2022 the GMC wrote to the Claimant to explain its reasons for the postponement and whilst the IC had power to promote the allegation to the MPT regardless of the GMCs position, because the GMC had changed its position from a warning to a potential MPT – following a question by the IC – it was only fair and reasonable for the Claimant to have time to consider this fully. We find that this was a reasonable course of action in these circumstances.

[303]The WDF Allegations and the UHLT evidence were submitted to a new IC in 2023. The Claimant asserts that this should have been a wholly new panel, i.e. only those not previously involved in the December hearing. We find that the reference to new IC is an administrative reference as any new hearing would have a new Committee. We do not find that this is a reference to wholly new panel members. We accept the Respondent’s evidence that the IC panel is appointed independently from the GMC and that they have no input into the allocation of panel members. Rule 7 investigation and Rule 8 decision in relation to the WDF Allegation

[304]We find that as at 31 May 2022 the CE’s had agreed that the Rule 8 decision should be a Warning as the Claimant had failed to co-operate with the GMC contrary to his obligations to it.

[305]We find that this Warning was offered on 21 July 2022 and refused on 25 July

[306]As the Warning offered to the Claimant was refused, the CE’s referred this case to the (“IC”)

[307]With regards to Rule 7:307.1 The GMC wrote to the Claimant regarding both the WDF and the ULHT Allegations on the 7 November 2022 in relation to his fitness to practice. The Claimant had previously been informed of the WDF Allegation alone on 25 July 2022.

307.2 The GMC letter of 7 November included the relevant documents.

307.3 This letter only provided 14-days in which to reply, which was due to the proximity of the IC hearing. The Claimant replied on 18 November 2022 with his comments and that he would not be able to attend the IC hearing.

307.4 Again, the GMC do not inform him that any representations may be sent to the referrer.

[308]We find that the ULHT evidence was linked to the WDF form, but for the fact that the Claimant refused to complete the form and denied that he was working, as a locum or otherwise, the ULHT would have been contacted earlier.

[309]We find as follows:309.1 That the Respondent sought professional advice as to its options before proceeding to include the evidence from Lincoln Hospital to the IC.

309.2 That at the outset of the investigation into the WDF Allegation the CE had considered whether the Claimant had acted dishonestly but determined that at that time they would accept his explanation as his being confused as to the requirement to complete the form.

309.3 That dishonesty had been an original consideration in relation to the WDF Allegation.

309.4 That the failure to complete the WDF was a serious failing on behalf of the Claimant.

309.5 That the refusal to complete the WDF increased the seriousness of the allegation.

309.6 That the information from the ULHT amounted to new information that went to the heart of the original consideration of honesty.

309.7 That the decision by the CE that the Claimant had incorrectly completed the Model A form by failing to declare that he was under investigation was new information relevant to the Claimant’s honesty.

[310]We find that overall, the GMC complied with Rule 7 and made a Rule 8 decision to offer him a warning for the WDF Allegation. The ULHT allegation was not considered under Rule 7 as the GMC introduced this to the IC as new evidence linked to the WDF allegation and asked that it was considered under Rule 11(6)(c). We also find that this was in accordance with the Rules.

[311]We find that the GMC was under a statutory obligation to require the Claimant to disclose where he was working. The Claimant was also under a professional obligation to co-operate and comply with the GMC’s reasonable instructions, as he had done on a previous occasion. We find that the failure to complete the form was a fundamental failing by the Claimant, and this was exacerbated by his ongoing refusal to comply and assertions that he had not worked as a locum. We understand that the Claimant was concerned about the Trust Allegations and asserted that they were vexatious, however his obligations to the GMC outweighed this. Issues of racial bias

[312]The Claimant describes himself as Black Sudanese. He states that the GMC were aware of his being not White British because of his name.

[313]It is the Claimant’s position that as an ethnic minority he was more likely to be referred to the GMC and that the GMC had a history of bias against ethnic minorities.

[314]It was the Respondent’s position that the GMC employees and decision makers would not have known the Claimant’s ethnic origin as this is not recorded in the GMC personal database. The only details that may indicate a person’s origin would be their name and their university at which they qualified. However, the Claimant had studied in Romania.

[315]It is also the Respondent’s position that the PSA had conducted an audit in 2020 / 2021 and that it was satisfied that the GMC had complied with its standards to endeavour to influence referrals and in its internal processes. The Respondent accepted that more BAME doctors are referred to them, however this is as a consequence of the referral process including possible external factors such as language and education. The PSA accepted that the GMC has no control over this and overall found that there was no indication of bias or discrimination.

[316]The Respondent provided evidence from Claire Light. The Tribunal were informed that the Claimant’s solicitor had accepted this witness statement in full and as a consequence she was not called. The Claimant stated that he had not agreed to this statement. On balance, we find that the Claimant’s solicitor had accepted the evidence.

[317]We accept the Respondent’s evidence that there is no evidence of any racial bias in regard to the GMC’s processes.

[318]With regards to training in Equality and Diversity (E&D), the Claimant stated that all of the GMC employees’ training was out of date and that this was an indication of racial bias.

[319]The Respondent’s position was that training had only been offered at induction. It stated that all of the employees involved in this case, were up to date with their training in so far as it had been available at the relevant time, i.e. 2021 – 2022. They also stated that the training did not have an expiry date. This has been updated now to require bi-annual refresher training.

[320]We find that we accept the Respondent’s evidence in relation to the training of its employees and accept that the introduction of refresher training is an indication of the GMCs ongoing reviews of its processes. Claimant’s “pleas” regarding the Trust Allegations

[321]From the outset the Claimant has objected to Dr. Haider’s referral of him to the GMC because the Claimant believed that:321.1 It was vexatious.

321.2 It was with regards to a closed investigation at the Trust.

321.3 That there was no evidence of any wrongdoing by him.

321.4 That the referral was in response to the Claimant’s complaints about Dr. Haider.

321.5 That he had reported Dr. Haider to the Police.

321.6 That he was pursing an Employment Tribunal claim against Dr Haider for discrimination and victimisation.

321.7 That the initial referral was because there had been a preliminary hearing at the Employment tribunal the day before.

[322]As the case progressed, the Claimant complained to the Respondent about its own actions in that:322.1 That the Respondent did not respond to the Claimant’s assertions or concerns properly.

322.2 That the Respondent failed to contact RMR Recruitment to find out where he was working.

322.3 That the Respondent misled the IC.

322.4 That the Respondent was not following its own Rules and Guidance.

[323]It is the Respondent’s position that:323.1 The Respondent is obliged to accept referrals from any source.

323.2 The Referral was accepted on the basis of its content alone, which is in accordance with the Rules.

323.3 That the AR determines the progression of the case on the papers alone, again in accordance with the Rules.

323.4 That it did reply to the Claimant on each and every occasion.

323.5 That it properly considered the initial reference by Dr Haider to the Claimant’s complaint about him as a grievance.

323.6 That when the Claimant provided evidence of a potential PIC, they acted promptly to convene a PIC Group review and acted in accordance with its direction.

323.7 That the purpose of the investigation was not a re-investigation of disciplinary matter as in the Trust disciplinary but was an investigation into the Claimants Fitness to Practise and whether that was impaired contrary to the Act.

323.8 That it was not for the Respondent to contact any locum agency, but for the practitioner to reply to the Respondent’s reasonable requests for work information.

323.9 That the IC was not misled.

323.10 That the Respondent managed the case in accordance with its Rules and Guidance and that it explained the process to the Claimant at every stage.

[324]On balance, we find that the Respondent reacted to all of the Claimant’s actions in a fair and proportionate manner. We are satisfied that every email from the Claimant has been reviewed and acted upon appropriately. Evidence

[325]With regards to the witness statement of Ms Light; and the acceptance of her statement by the Claimant’s solicitor, we have accepted her evidence.

[326]The Respondent’s evidence was detailed and the witnesses were clearly knowledgeable regarding the GMC’s Rules and procedures.

[327]The Claimant was clearly emotional and stressed by the Tribunal experience, however reasonable adjustments were made to assist him. Additionally, he was assisted to focus on answering questions so that he could present his best case in the time available. The law Time Limits

[328]Time-limits are set out in s123 of the Equality Act. The ACAS early conciliation procedure covers discrimination claims. 123 Time limits(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[329]The primary time limit is within 3 months of the discriminatory action. The 3 months is counted as it is for unfair dismissal claims, i.e. 3 calendar months less 1 day from the discriminatory action.

[330]If the claim is late, the tribunal has a ‘just and equitable’ discretion under s123(1)(b). This is a much wider discretion than with unfair dismissal claims. It is essentially an exercise in assessing the balance of disadvantages between the parties. The reason why the claim was late is just one factor.

[331]If more than one discriminatory action is claimed, the 3-month time-limit attaches to each action. However, under s123(3), conduct extending over a period is treated as if done at the end of the period, so the 3 months only needs to be counted from that point. This is often colloquially referred to as ‘continuing discrimination’.

[332]In Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

, the Court of Appeal held that ‘an act extending over a period’ can comprise a ‘continuing state of affairs’ as opposed to a succession of isolated or unconnected acts.

[333]There needs to be some kind of link or connection between the actions, especially if different people are involved. This often means that a series of discriminatory actions can be in time provided the claim was presented within 3-months of the most recent action (ie the most recent action which is ultimately found to be discrimination).

[334]In considering whether to extend time, HSBC Bank Plc v Chevalier-Firescu

[2024] EWCA Civ 1550

the Tribunal should consider the following:334.1 The claims themselves;

334.2 When the claimant knew they had an arguable claim or claims; and

334.3 What the Tribunal make of the claimant’s explanation for not having brought his claims earlier than he did. Discrimination and the burden of proof

[335]The claim relies on section 13 of the Equality Act 2010 which provides that: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[336]Section 53(2) of the Equality Act 2010 provides: 53 Qualifications bodies (2) A qualifications body(a) (A) must not discriminate against a person

(b) (B) upon whom A has conferred a relevant qualification— (a) by withdrawing the qualification from B; (b) by varying the terms on which B holds the qualification;

[337]The characteristics protected by these provisions include race.

[338]Under Section 23(1) of the Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. The requirement is that all relevant circumstances between the claimant and the comparator must be the same and not materially different, although it is not required that the situations have to be precisely the same.

[339]Section 136 of the Equality Act 2010 sets out the manner in which the burden of proof operates in a discrimination case and provides as follows: “(2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But sub-section (2) does not apply if A shows that A did not contravene the provision”.

[340]At the first stage, the Tribunal must consider whether the claimant has proved facts on a balance of probabilities from which the Tribunal could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination. This is sometimes known as the prima facie case. It is not enough for the claimant to show merely that he has been treated less favourably than his comparator and there was a difference of a protected characteristic (such as age) between them. In general terms “something more” than that would be required before the respondent is required to provide a non-discriminatory explanation. At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination, the question is whether it could do so.

[341]If the first stage has resulted in the prima facie case being made, there is also a second stage. There is a reversal of the burden of proof as it shifts to the respondent. The Tribunal must uphold the claim unless the respondent proves that it did not commit (or is not to be treated as having committed) the alleged discriminatory act. To discharge the burden of proof, there must be cogent evidence that the treatment was in no sense whatsoever on the grounds of the protected characteristic.

[342]In practice Tribunals normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, second, whether the less favourable treatment was on the ground that the claimant had the protected characteristic. However, a Tribunal is not always required to do so, as sometimes these two issues are intertwined, particularly where the identity of the relevant comparator is a matter of dispute. Sometimes the Tribunal may appropriately concentrate on deciding why the treatment was afforded, that is was it on the ground of the protected characteristic or for some other reason?

[343]In most cases there is a need to consider the mental processes, whether conscious or unconscious, which led the alleged discriminator to do the act. Determining this can sometimes not be an easy enquiry, but the Tribunal must draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). The subject of the enquiry is the ground of, or the reason for, the alleged discriminator’s action, not his or her motive. In many cases, the crucial question can be summarised as being, why was the claimant treated in the manner complained of?

[344]The Tribunal needs to be mindful of the fact that direct evidence of discrimination is rare, and that Tribunals frequently have to infer discrimination from all the material facts. Few employers would be prepared to admit such discrimination even to themselves. The protected characteristic does not have to be the only reason for the conduct, provided that it is an effective cause or a significant influence for the treatment. The explanation for the less favourable treatment does not have to be a reasonable one. Unfair or unreasonable treatment by an employer does not of itself establish discriminatory treatment. It cannot be inferred from the fact that one employee has been treated unreasonably that an employee of a different age (or with any other difference of a protected characteristic) would have been treated reasonably.

[345]The way in which the burden of proof should be considered has been explained in many cases, including: Barton v Investec Henderson Crosthwaite Securities Limited

[2003] IRLR 332

; Shamoon v Chief Constable of the RUC

[2003] IRLR 285

; Hewage v Grampian Health Board

[2012] ICR 1054

; Igen Limited v Wong

[2005] ICR 931

; Madarassy v Nomura International PLC

[2007] ICR 867

; and Royal Mail v Efobi

[2021] UKSC 33

[346]There is no defence of justification for direct discrimination because of race.

[347]The Claimant referred the Tribunal to the case of Brooker v Greenwich which is a first instance case and has been reviewed. It is a case where the Respondent’s response was struck out as a result of the respondent’s unreasonable conduct during disclosure meaning that it was not possible to have a fair hearing in the trial window. No submissions were given on this case.

[348]The Respondent referred the Tribunal to the following additional cases: Dr Vivienne Jean Lyfar v Brighton and Sussex University Hospital’s Trust

[2006] EWCA Civ 1548

. The Respondent contends that a similar distinction should be made in this case between the way in which the Trust allegations were dealt with and the matters before the CE and submits that the final possible date for the Trust allegations was the 16th August 2022, which is when the 2 CEs dismissed those allegations.

[349]The Respondent relies on the case of Robertson v. Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

, in which the Court of Appeal, when considering the exercise of discretion to extend time, stated: “There is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. The Tribunal cannot hear a claim unless the Claimant convinces it that it is just and equitable to extend time. So the exercise of discretion is the exception rather than the rule”.

[350]The Court of Appeal, in Adedeji v University Hospitals Birmingham NHS Foundation trust

[2021] EWCA Civ 23

, emphasised the fact that the length of and reasons for delay are important and that, whilst the s.33 checklist under the Limitation Act set out potentially relevant factors to consider, all the circumstances of the individual case had to be considered when determining whether or not to extend time. Submissions

[351]The Respondent and Claimant provided helpful skeleton arguments, which the Tribunal has taken into consideration. Conclusions The Issues

[352]The issues the Tribunal will decide, which were agreed between the parties are set out below. Time limits

[353]Acas conciliation started on 22 December 2022 and ended on 17 January 2023. This case was issued on 29 January 2023. It is agreed that any complaint about acts that happened before 23 September 2022 are prima facie out of time.

[354]Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:354.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

354.2 If not, was there conduct extending over a period?

354.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

354.4 If not, were the claims made within a period that the Tribunal thinks is just and equitable? Direct Race Discrimination – s.13 Equality Act 2010

[355]The Claimant is of Sudanese ethnic origin. He compares himself with a hypothetical white British person.

[356]Did the Respondent act as specified below: On or around November 2021, omitting to make provisional enquiries as per the Respondent’s ‘Guidance for decision makers on Provisional enquiries’?

[357]The claim in relation to this issue was issued more than 3-months after 23 September 2022.

[358]The referral into the GMC was made on the 18 November 2021 by Dr. Haider. This detailed the Trust Allegations and provided relevant documents.

[359]The decision to not make provision enquiries but refer the case to a Stream 1 investigation was made by the AR on 26 November 2021 in accordance with Rule 4. This was communicated to the Claimant by telephone on 29 November 2021 and by email on 2 December 2021.

[360]The opportunity to make provisional enquiries ended at the point at which the AR decided to promote the Claimant’s case to a Stream 1 Investigation. Taking the evidence at its highest, this date would be the date on which the Claimant was informed of the decision. This was 2 December 2021.

[361]If this was a continuing act, then this ended on the 2 December 2021 and does

[362]The claims themselves;362.1 When the claimant knew they had an arguable claim or claims; and

362.2 What the Tribunal make of the claimant’s explanation for not having brought his claims earlier than he did.

[363]The claim is for direct discrimination in relation to race.

[364]The Claimant had initiated earlier Tribunal Claims against the Trust and ULHT.

[365]The Claimant referred to the Acas Code of Practice in his grievance dated 12

[366]We have found that the claimant was aware from no later than 26 February 2021

[367]The Claimant asserted from the initial contact from the GMC, that the referral was

[368]We have determined that any omission to make provisional enquiries would have ended on 2 December and it is from this date that a claim could have been made.

[369]The Claimant did not give a reason for his late submission of the claim.

[370]We have found that the Claimant was aware of the Tribunal process and time

[371]On or around November 2021, omitting section 13 of its own policy published in July 2021 (DC4528 GMC thresholds), in failing to refer the Claimant’s case for provisional enquiries, and instead going straight into a full investigation.

[372]The claim was issued more than 3-months after 23 September 2022.

[373]The referral into the GMC was made on the 18 November 2021 by Dr. Haider.

[374]The decision to not make provision enquiries but refer the case to a Steam 1 investigation was made by the AR on 26 November 2021 in accordance with Rule 4. This was communicated to the Claimant by telephone on 29 November 2021 and by email on 2 December 2021.

[375]The opportunity to make provisional enquiries ended at the point at which the AR decided to promote the Claimant’s case to a Stream 1 Investigation. Taking the evidence at its highest, this date would be the date on which the Claimant was informed of the decision. This was 2 December 2021.

[376]If this was a continuing act, then this ended on the 2 December 2021 and does

[377]The claims themselves;377.1 When the claimant knew they had an arguable claim or claims; and

377.2 What the Tribunal make of the claimant’s explanation for not having

[378]The claim is for direct discrimination in relation to race.

[379]The Claimant had initiated earlier Tribunal Claims against the Trust and ULHT.

[380]The Claimant referred to the Acas Code of Practice in his grievance dated 12

[381]We have found that the Claimant was aware from no later than 26 February 2021

[382]The Claimant asserted from the initial contact from the GMC, that the referral was

[383]We have determined that any omission to make provisional enquiries would have ended on 2 December and it is from this date that a claim could have been made.

[384]The Claimant did not give a reason for his late submission of the claim.

[385]We have found that the Claimant was aware of the Tribunal process and time

[386]On or around November 2022, breaching the policy set out on the page entitled “how we investigate concerns” on the Respondent’s web page, by taking over 12 months to reinvestigate the claimant’s case.

[387]We have found that the referral was made on 18 November 2021.

[388]We have found that the Respondent’s target date for a Rule 8 decision was 19 August 2022 and we have found that the Trust Allegation case was closed and communicated to the Claimant on 23 August 2022.

[389]We conclude that the Trust Allegation case continued for 9-months. There was therefore no breach of the policy as alleged.

[390]We have found that the WDF Allegation was a separate allegation that arose on 11 February 2022 and the Rule 8 decision to offer the warning was made in July

[391]We conclude that the WDF Allegation investigation continued for 3-months. There was therefore no breach of the policy as alleged.

[392]We have found that the ULHT allegation arose on 4 October 2022 but was ongoing and is not an issue in this case.

[393]We conclude that there is no breach of policy as alleged in relation to the WDF Allegation or the ULHT Allegation.

[394]Throughout the period of November 2021 to December 2022, ignoring the claimant’s pleas to follow the Respondent’s own policies and procedures.

[395]The claim was issued more than 3-months after 23 September 2022.

[396]The Claimant complained to the Respondent regarding his belief that they had not followed their rules and procedures from the date on which the Claimant was informed of the referral, until December 2022.

[397]We find that there was a conduct extending over a period that extended over the 23 September 2022 and this claim is therefore in time.

[398]In considering Direct Discrimination;

[399]At Stage 1, there must be primary facts from which the tribunal could decide – in the absence of any other explanation - that discrimination took place. At this stage, the burden is on the claimant and the employers explanation is disregarded.

[400]We have reviewed our findings and determine that there are no primary facts from which we could decide that the Claimant’s pleas were ignored.

[401]We have not found any primary facts to determine that the Respondent materially breached its own policies and procedures. Just because the Respondent did not do as the Claimant demanded, i.e. close the case, is not evidence that the Claimant’s pleas were ignored.

[402]We find that the Respondent did not ignore the Claimant’s pleas to follow its own policies and procedures and conclude that the Respondent did not act as alleged.

[403]On or around December 2021, reinvestigating a case that was already investigated and concluded at a local level.

[404]The claim was issued more than 3-months after 23 September 2022.

[405]The referral into the GMC was made on the 18 November 2021 by Dr. Haider.

[406]The Claimant was informed that the investigation into the Trust Allegations was concluded with a Rule 8 decision no later than 27 July 2022. This was also communicated to the Claimant, in writing on 23 August 2022.

[407]Taking the Claimant’s case at its highest, if this was a continuing act, then this ended on the 23 August 2022 and does not extend further.

[408]The claims themselves;408.1 When the claimant knew they had an arguable claim or claims; and

408.2 What the Tribunal make of the claimant’s explanation for not having

[409]The claim is for direct discrimination in relation to race.

[410]The Claimant had initiated earlier Tribunal Claims against the Trust and ULHT.

[411]The Claimant referred to the Acas Code of Practice in his grievance dated 12

[412]We have found that the claimant was aware from no later than 26 February 2021

[413]The Claimant asserted from the initial contact from the GMC, that the referral was

[414]The investigation was opened following the AR’s Rule 4 decision on 2 December 2021.

[415]The Claimant could have initiated a claim for discrimination at any time from 2 December 2021 until 3-months after 23 August 2022. The Claimant had asserted in his correspondence with the Respondent that he believed that he was being

[416]The Claimant did not give a reason for his late submission of the claim.

[417]We have found that the Claimant was aware of the Tribunal process and time claim from 2 December 2021, which continued until 23 August 2022. In these circumstances, and with no mitigation to consider, we conclude that it is not just and equitable to extend time.

[418]On or around December 2021: 418.1 accepting a referral from Mr Haider, who was not the Claimant’s Responsible Officer at the time;

[419]The claim was issued more than 3-months after 23 September 2022.

[420]If not, was there conduct extending over a period?

[421]The referral into the GMC was made on the 18 November 2021 by Dr. Haider.

[422]The decision to accept the referral made by the AR on 26 November 2021 in accordance with Rule 4. This was communicated to the Claimant by telephone on 29 November 2021 and by email on 2 December 2021.

[423]The opportunity to reject the referral ended at the point at which the AR decided to promote the Claimant’s case to a Stream 1 Investigation. Taking the evidence at its highest, this date would be the date on which the Claimant was informed of the decision. This was 2 December 2021.

[424]If this was a continuing act, then this ended on the 2 December 2021 and does

[425]The claims themselves;425.1 When the claimant knew they had an arguable claim or claims; and

425.2 What the Tribunal make of the claimant’s explanation for not having

[426]The claim is for direct discrimination in relation to race.

[427]The Claimant had initiated earlier Tribunal Claims against the Trust and ULHT.

[428]The Claimant referred to the Acas Code of Practice in his grievance dated 12

[429]We have found that the claimant was aware from no later than 26 February 2021

[430]The Claimant asserted from the initial contact from the GMC, that the referral was

[431]We have determined that the acceptance of the referral occurred when the AR made their Rule 4 decision which was on 2 December, and it is from this date that a claim could have been made. We conclude that the Claimant was aware that he could have a possible discrimination claim from this date.

[432]The Claimant did not give a reason for his late submission of the claim.

[433]We have found that the Claimant was aware of the Tribunal process and time

[434]On or around December 2021 ignoring the fact that there were personal issues between the Claimant and Mr Haider, and therefore failing to ensure s.1 of the GMC thresholds document (DC4528) was complied with.

[435]The claim was issued more than 3-months after 23 September 2022.

[436]The referral on 18 November 2021 by Dr Haider included a reference to a complaint by the Claimant against him.

[437]The AR reviewed the referral documents and found that the complaint included allegations regarding Dr Haider in relation to the disciplinary matters at the Trust. We have found that the AR appropriately considered this document to be a grievance and not a PIC at this time.

[438]The Respondent was aware of the personal issues between the Claimant and Dr. Haider from the outset of their case. We have found that the Respondent did not ignore the Claimant’s pleas or concerns at any time.

[439]We have not found that the Respondent ignored the personal issues between the Claimant and Dr Haider but acted on the Claimant’s complaints including investigating Dr Haider and referring the case to the PIC Group. Again, just because the decision of the Respondent was not what the Claimant wanted, did not mean that his concerns were being ignored.

[440]We do not find that there was a continuing act, therefore the date of this allegation is the date of referral only, being 18 November 2021.

[441]The claims themselves;441.1 When the claimant knew they had an arguable claim or claims; and

441.2 What the Tribunal make of the claimant’s explanation for not having

[442]The claim is for direct discrimination in relation to race.

[443]The Claimant had initiated earlier Tribunal Claims against the Trust and ULHT.

[444]The Claimant referred to the Acas Code of Practice in his grievance dated 12

[445]We have found that the claimant was aware from no later than 26 February 2021

[446]The Claimant asserted from the initial contact from the GMC, that the referral was

[447]We have determined that the date of the alleged act was the date of the referral, being 18 November 2021 and it is from this date that a claim could have been made. We conclude that the Claimant was aware that he could have a possible

[448]The Claimant did not give a reason for his late submission of the claim.

[449]We have found that the Claimant was aware of the Tribunal process and time claim from 18 November 2021. In these circumstances, and with no mitigation to

[450]Not following its own policy published in July 2021 (DC4528 GMC thresholds), which states at [1] that the GMC's aim is(i) not to resolve individual concerns; and

(ii) not to punish doctors for past mistakes. The Claimant will say that (i) Mr Haider’s referral was manifestly vexatious; and (ii) the allegations in question related to 2020; and were locally investigated and concluded in 2021.

[451]The claim was issued more than 3-months after 23 September 2022.

[452]The date on which this allegation manifests itself, is the date on which the referral was made, being 18 November 2021.

[453]The allegation does not refer to any date on which the Respondent is alleged to have not followed its policy. That being the case, if the Tribunal considers the Claimant’s case at its highest, being for the whole length of time during which the Trust Allegations from the referral were under review, this would provide that the last date on which the act relates, is the date on which the Respondent communicated it's decision to close the case to the Claimant. This was 23 August

[454]If there was a continuing act, we find that this ended on 23 August 2022.

[455]The claims themselves;455.1 When the claimant knew they had an arguable claim or claims; and

455.2 What the Tribunal make of the claimant’s explanation for not having

[456]The claim is for direct discrimination in relation to race.

[457]The Claimant had initiated earlier Tribunal Claims against the Trust and ULHT.

[458]The Claimant referred to the Acas Code of Practice in his grievance dated 12

[459]We have found that the claimant was aware from no later than 26 February 2021

[460]The Claimant asserted from the initial contact from the GMC, that the referral was

[461]The Claimant could have initiated a claim for discrimination at any time from 18 November 2021 until 3-months after 23 August 2022. The Claimant had asserted in his correspondence with the Respondent that he believed that he was being

[462]The Claimant did not give a reason for his late submission of the claim.

[463]We have found that the Claimant was aware of the Tribunal process and time claim from 18 November 2021 until 23 August 2022. In these circumstances, and with no mitigation to consider, we conclude that it is not just and equitable to extend time.

[464]On or around 16 August 2022, proposing to give the claimant a warning for the delay in providing the GMC information about his employment in November 2021.

[465]The claim was issued more than 3-months after 23 September 2022.

[466]The warning proposed by the Respondent in relation to the WDF Allegation was sent to the Claimant on 21 July 2022, which the Claimant refused on 25 July 2022. The warning was re-offered on 27 July 2022 but was not accepted by the Claimant. The case was therefore referred by the CE to the case to the IC. This was on 16 August 2022.

[467]On referring the case to the IC, the warning offered to the Claimant was no longer available for him to accept as the decision as to any sanction would need to be made by the IC.

[468]We find that if there was a continuing act, if was for the period of 21 July – 16 August 2022. The last date for this alleged act is 16 August 2022.

[469]The claims themselves;469.1 When the claimant knew they had an arguable claim or claims; and

469.2 What the Tribunal make of the claimant’s explanation for not having

[470]The claim is for direct discrimination in relation to race.

[471]The Claimant had initiated earlier Tribunal Claims against the Trust and ULHT.

[472]The Claimant referred to the Acas Code of Practice in his grievance dated 12

[473]We have found that the claimant was aware from no later than 26 February 2021

[474]The Claimant asserted in response to the offer of the warning on 25 July 2022 that the investigation of the referral was discriminatory.

[475]The Claimant could have initiated a claim for discrimination at any time from 21 July 2022 until 3-months after 16 August 2022. The Claimant had asserted in his correspondence with the Respondent that he believed that he was being

[476]The Claimant did not give a reason for his late submission of the claim.

[477]We have found that the Claimant was aware of the Tribunal process and time claim from 21 July 2022 until 3-months after 16 August 2022. In these circumstances, and with no mitigation to consider, we conclude that it is not just and equitable to extend time.

[478]Repeatedly delaying the determination of the Claimant’s case (in breach of the Respondent’s own policies and procedures), namely by: 478.1 On or around October 2022, sending the Claimant a letter notifying him that his second hearing, due to take place in October 2022, was postponed until December 2022;

[479]Did the Respondent act as alleged?479.1 The Respondent wrote to the Claimant on 7 October 2022 notifying the Claimant that the Respondent had received new information.

479.2 On 11 October, the Claimant emailed the IC with his comments as to the case but does not refer to the proposed postponement.

479.3 On 12 October the IC email the Claimant to confirm that the Chair of the IC Committee had decided to postpone the hearing scheduled for the 14 October 2022 due to new evidence being provided.

479.4 We have found that the decision to postpone the hearing was made by the IC.

479.5 Writing to the Claimant in relation to the existence of new evidence and in relation to the postponement of the 14 October 2022 IC hearing, was not in breach of the Respondent’s own policies and procedures.

[480]In considering Direct Discrimination;

[481]At Stage 1, there must be primary facts from which the tribunal could decide – in the absence of any other explanation - that discrimination took place. At this stage, the burden is on the claimant and the employers explanation is disregarded.

[482]We have reviewed our findings and determine that there are no primary facts from which we could decide that the Claimant’s pleas were ignored.

[483]We have not found any primary facts to determine that the Respondent materially breached its own policies and procedures. We have found that the decision to postpone was reasonable in the circumstances. We therefore conclude that the Respondent did not act as alleged.

[484]In December 2022, not sending the Claimant any correspondence concerning the sanction they intended to impose, and instead informing the claimant that the hearing would be postponed.

[485]Did the Respondent act as alleged?485.1 On 7 November 2022 the Respondent wrote to the Claimant to inform him that his case had been referred to the IC and that the sanction they sought was a referral to the MPTS.

485.2 On 13 December 2022, the Respondent emailed the Claimant to inform him that the GMC had changed its position and that it was now asking the IC to consider a warning. This email enclosed the draft warning for the IC to consider.

485.3 Both pieces of correspondence confirmed that any decision made for any sanction was for the IC to make irrespective of the sanction sought by the Respondent.

485.4 The Claimant was afforded the opportunity to attend the Hearing, which was held on Teams, but he did not do so.

485.5 On the morning of the first day of the IC hearing, the IC raised the question of impairment of fitness to practise with the GMC. Following further preliminary questions by the IC, the Respondent changed its position back to its original position, which was that it would seek a referral to the MPT.

485.6 Given the questions raised by the IC during the preliminary part of the hearing, both the IC and the GMC determined that to ensure that the Claimant had a fair opportunity to be heard, the hearing should be postponed. The decision to postpone was made by the IC.

485.7 Any sanction from the IC is imposed by the IC alone. Any proposal by the Respondent is a proposal and it is for the IC to determine the sanction as it saws fit.

485.8 On the afternoon of the 13 December the Respondent informed the Claimant of the proposal now being a warning. However, overnight, the Respondent’s position changed back to its original position, which the Claimant had been originally informed of on the 7 November 2022.

485.9 It was noted by the IC and the Respondent that the Claimant had not responded to the correspondence of the 13 December and given the change in position, the Committee was not satisfied that the Claimant had had sufficient clarity or time to respond to the Respondent’s position. The Committee decided to postpone the hearing to allow the Claimant sufficient time to prepare.

485.10 We have found that it was fair and reasonable to postpone the hearing in the circumstances.

485.11 The Respondent did not send the Claimant any correspondence on the morning of the 14 October 2022 to update him of the change in their position as to the sanction they were seeking. We conclude that the Respondent did act as alleged. Was that less favourable treatment?

[486]The Claimant relies on a hypothetical comparator. The Tribunal will decide whether he was treated worse than someone else would have been treated (this is known as a hypothetical comparator, which would be an imaginary person who is identical to the claimant save that they were not of Sudanese ethnic origin). In order for a comparison to be made, there must be no material differences between their circumstances and his own, save for the protected characteristic of race.

[487]We have considered the circumstances and have accepted the Respondent’s evidence that it would have been unfair for the hearing to continue in the circumstances. We do not find that the postponement was less favourable treatment and that a hypothetical comparator would have been treated in the same way.

[488]We conclude that the Claimant was not treated less favourably. Employment Judge Illing Dated: 27 June 2025 ANNEX A: Statute, policy and guidelines This Annex includes extracts from the following:• The Medical Act 1983 (as amended)

• Professional Standards Authority

•

The General Medical Council (Fitness to Practise) Rules 2014

• The Realistic Prospect Test

• Triage Manual for Assistant Registrars

• Guidance for decision makers on provisional enquiries

• GMC Thresholds

• Public interest concerns Operational guidance The Medical Act 1983

[489]The Statute upon which the Respondent is governed is the Medical Act 1983 (as amended (“the Act”)

[490]The Act states as follows: The General Medical Council. (1) There shall continue to be a body corporate known as the General Medical Council (in this Act referred to as “the General Council”) having the functions assigned to them by this Act. (1A) The over-arching objective of the General Council in exercising their functions is the protection of the public. (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 (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 The question of fitness to practice is and medical ethics is detailed within Part V of the Act.

[491]S.35B states as follows: 35B Notification and disclosure by the General Council (1) As soon as is reasonably practicable after the relevant date, the General Council shall notify the following of an investigation by the General Council of a practitioner’s fitness to practise— (a)the Secretary of State, the Scottish Ministers, the Department of Health, Social Services and Public Safety in Northern Ireland and the National Assembly for Wales; and (b)any person in the United Kingdom of whom the General Council are aware— (i) by whom the practitioner concerned is employed to provide services in, or in relation to, any area of medicine, or (ii) with whom he has an arrangement to do so.

[492]S.35C states as follows: 35C Functions of the Investigation Committee(1) This section applies where an allegation is made to the General Council against— (a)a fully registered person; or (b)a person who is provisionally registered, that his fitness to practise is impaired.

(2) A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of— (a) misconduct; (b) deficient professional performance; (c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence; (d) adverse physical or mental health; or (da) not having the necessary knowledge of English (but see section 2(4)); (e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect. …. (4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Medical Practitioners Tribunal. (5) If the Investigation Committee decide that the allegation ought to be considered by a Medical Practitioners Tribunal— (a)they shall give a direction to that effect to the Registrar; (b)the Registrar shall refer the allegation to the MPTS for them to arrange for the allegation to be considered by a Medical Practitioners Tribunal; and (c)the Registrar shall serve a notification of the Committee’s decision on the person who is the subject of the allegation and the person making the allegation (if any). (6) If the Investigation Committee decide that the allegation ought not to be considered by a Medical Practitioners Tribunal, they may give a warning to the person who is the subject of the allegation regarding his future conduct or performance. (6A) In deciding whether to give a warning under subsection (6), the Investigation Committee must have regard to the over-arching objective. (7) If the Investigation Committee decide that the allegation ought not to be considered by a Medical Practitioners Tribunal, but that no warning should be given under subsection (6) above— (a)they shall give a direction to that effect to the Registrar; and (b)the Registrar shall serve a notification of the Committee’s decision on the person who is the subject of the allegation and the person making the allegation (if any). (8) If the Investigation Committee are of the opinion that an Interim Orders Tribunal or a Medical Practitioners Tribunal] should consider making an order for interim suspension or interim conditional registration under section 41A below in relation to the person who is the subject of the allegation— (a) they shall give a direction to that effect to the Registrar; (b) the Registrar shall refer the matter to the MPTS for them to arrange for an Interim Orders Tribunal or a Medical Practitioners Tribunal... to decide whether to make such an order; and (c) the Registrar shall serve notification of the decision on the person who is the subject of the allegation and the person making the allegation (if any).

[493]Section 35CC of the Act provides provisions supplementary to section 35C and states: 35CC Provisions supplementary to section 35C (1)Rules under paragraph 1 of Schedule 4 to this Act may make provision for— (a)the Registrar; or (b)any other officer of the General Council, to exercise the functions of the Investigation Committee under section 35C above, whether generally or in relation to such classes of case as may be specified in the rules. Professional Standards Authority

[494]The Professional Standards Authority (“PSA”), is the independent body that governs the regulators of professional bodies, of which the respondent is one. The Standards of Good Regulation states as follows: These Standards set out the Authority’s expectations about the outcomes that it expects from regulators and their approach to their work. The Standards prioritise the core role of regulators in:• Protecting patients and reducing harms

• Promoting professional standards

• Maintaining public confidence in the professions.

[495]Standard three states: Standard three The regulator understands the diversity of its registrants and their patients and service users and of others who interact with the regulator and ensures that its processes do not impose inappropriate barriers or otherwise disadvantage people with protected characteristics.

[496]Standard fourteen states: Fitness to practise Standard fourteen The regulator enables anyone to raise a concern about a registrant. 497 xx The General Medical Council (Fitness to Practise) Rules 2014

[498]The Respondent exercises its power under s.35CC(1) through the General Medical Council (Fitness to Practise) Rules 2014. This is a 40-page document of Rules and the Rules the Tribunal have been referred to are as follows: 4.(1) An allegation shall initially be considered by the Registrar.

(5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest for it to proceed. Functions of the Registrar in relation to cautions, convictions and determinations 5. (1) Subject to rule 4(5), the Registrar shall refer an allegation falling within section 35C(2)(c) of the Act relating to a conviction resulting in the imposition of a custodial sentence, whether immediate or suspended, directly to the MPTS for them to arrange for it to be considered by a Medical Practitioners Tribunal. (2) Subject to rule 4(5), the Registrar shall refer any other allegation falling within section 35C(2)(c) or (e) of the Act directly to the MPTS for them to arrange for it to be considered by a Medical Practitioners Tribunal, unless he is of the opinion that it ought to be referred to a medical and a lay Case Examiner for consideration under rule 8. Referral to Interim Orders Tribunal 6. 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. 7. (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. (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. (3) The Registrar may direct that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2. (3A) The Registrar may direct that the practitioner undertake an assessment of knowledge of English in accordance with Schedule 3. (4) Where an assessment has been carried out in accordance with Schedule 1 or 2, the Registrar shall send a copy of the assessment report to the practitioner. (5) Where an assessment has been carried out in accordance with Schedule 1, the Registrar shall send a copy of the assessment report to any person by whom the practitioner is employed to provide medical services or with whom he has an arrangement to do so. Consideration by Case Examiners 8. (1) An allegation referred by the Registrar under rule 4(2), 5(2), 12(6)(b) or 28(2)(b) shall be considered by the Case Examiners. (2) Upon consideration of an allegation, the Case Examiners may unanimously decide- (a) that the allegation should not proceed further; (b) to issue a warning to the practitioner in accordance with rule 11(2); (c) to refer the allegation to the Committee under rule 11(3) for determination under rule 11(6); or (d) to refer the allegation to the MPTS for them to arrange for determination by a Medical Practitioners Tribunal. (3) The Case Examiners may unanimously decide to recommend that the practitioner be invited to comply with undertakings in accordance with rule 10(3) and, where they do so and the practitioner confirms he is prepared to comply with such undertakings in accordance with rule 10(4), they shall make no decision under paragraph (2) accordingly. (4) As soon as reasonably practicable, the Case Examiners shall inform the Registrar of their decision, together with the reasons for that decision, and the Registrar shall notify the practitioner and the maker of the allegation (if any), in writing, accordingly. (5) If the Case Examiners fail to agree as to the disposal of an allegation under paragraph (2), or whether to recommend that the practitioner be invited to comply with undertakings under paragraph (3), they shall notify the Registrar accordingly, and the Registrar shall refer the allegation for consideration by the Committee under rule 9.

(6) If, at any stage, one of the Case Examiners is of the opinion that an Interim Orders Tribunal should consider making an interim order in relation to a practitioner, he shall direct the Registrar accordingly. Consideration by the Committee 9. Upon consideration of an allegation referred under rule 8(5), the Committee may- (a) determine that the allegation should not proceed further; (b) dispose of the allegation by issuing a warning to the practitioner without an oral hearing in accordance with rules 11(2) to (4); (c) determine that an oral hearing should be held for determination under rule 11(6); (d) refer the allegation to the MPTS for them to arrange for determination by a Medical Practitioners Tribunal; or (e) where the Case Examiners have failed to agree whether to recommend that the practitioner be invited to comply with undertakings in accordance with rule 10(3), determine that the practitioner be invited to comply with such undertakings as the Committee think fit and direct the Case Examiners to make no decision under rule 8(2) accordingly. Warnings 11. (1) If it appears to one or both of the Case Examiners that an allegation is one with respect to which he or they may wish to give a warning, he or they shall inform the Registrar, and the Registrar shall write to the practitioner to inform him that he is entitled to make written representations within the period of 28 days from the date of the letter. (2) Subject to paragraph (3), if the Case Examiners are satisfied that the allegation ought not to be referred to the MPTS for them to arrange for it to be considered by a Medical Practitioners Tribunal and- (a) the practitioner has made no representations under this rule; or (b) after considering any representations made, the practitioner has not contested the facts upon which the allegation is based, they may if they think fit issue a warning to the practitioner. (3) After considering any representations made by the practitioner, where- (a) the practitioner has requested that the allegation be referred for an oral hearing before the Committee; or (b) the Case Examiners otherwise consider it appropriate to do so, the Case Examiners shall refer the allegation to the Committee for an oral hearing in accordance with this rule. (4) Where the Committee- (a) is considering an allegation under rule 9 which has been referred as a result of the failure of the Case Examiners to agree as to disposal under rule 8(2)(a) or (d); and (b) considers that the allegation is one with respect to which it may wish to give a warning, it shall inform the Registrar, and the Registrar shall write to the practitioner in accordance with paragraph (1), and paragraphs (2) and (3) shall apply as if references to the Case Examiners were references to the Committee. (5) Where an allegation has been referred to the Committee for an oral hearing under paragraph (3) or (4), the Registrar shall give notice to the practitioner- (a) particularising the allegation against the practitioner and the facts upon which it is based; (b) specifying the date, time and venue of the hearing; (c) informing him of his right to attend the hearing and to be represented at a hearing in accordance with rule 33; (d) informing him of the power of the Committee to proceed in his absence under rule 31; and (e) informing him of the Committee's powers of disposal as set out in paragraph (6). (6) The Committee shall consider any allegation referred to it under paragraph (3) or (4), and shall- (a) determine that the matter should not proceed further; (b) dispose of the allegation by issuing a warning; or (c) where new information adduced into evidence at the hearing indicates that to do so would be appropriate, refer the allegation to the MPTS for them to arrange for determination by a Medical Practitioners Tribunal.

(7) Where an allegation has been referred for an oral hearing under paragraph (3) or (4), the order of proceedings before the Committee shall be as follows- (a) the representative for the GMC must outline the allegation and the facts upon which it is based and may adduce any relevant— (i) documentary evidence, or (ii) where the Committee considers such evidence is necessary to enable it to discharge its functions under paragraph (6), oral evidence; and (b) the practitioner may respond to the allegation and may adduce any relevant- (i) documentary evidence, or (ii) where the Committee considers such evidence is necessary to enable it to discharge its functions under paragraph (6), oral evidence; (c) the parties may make such further submissions as the Committee may allow; (d) before making its decision, the Committee may adjourn for further investigations to be carried out, including an assessment of the practitioner's performance or health under Schedule 1 or 2 or an assessment of knowledge of English in accordance with Schedule 3; and (e) the Committee shall announce its decision, and shall give its reasons for that

(8) In making its decision, the Committee shall, where appropriate, take into account the practitioner's previous fitness to practise history with the General Council or any other regulatory body.

(9) The Registrar shall serve written notification of the Committee's decision upon the practitioner as soon as reasonably practicable.

(10) The notice of decision shall- (a) where the Committee decides that the matter should be referred to the MPTS for them to arrange for it to be determined by a Medical Practitioners Tribunal, particularise the allegation against the practitioner that is to be referred; and (b) where the Committee decides that the matter should be disposed of by issuing a warning, particularise the terms of the warning issued to the practitioner. Withdrawal of a matter Rule 28. (1) Where, after an allegation has been referred to the Committee and before the opening of the hearing before the Committee— (a) a practitioner who has requested an oral hearing withdraws that request; or (b) it appears to the Registrar for some other reason that the hearing should not be held, the Registrar may refer the matter to a medical or lay Case Examiner for a decision as to whether or not the matter (of part of it) should be withdrawn. (2) Where after a matter has been referred to a Medical Practitioners Tribunal or Interim Orders Tribunal and before the opening of the hearing before the Tribunal, it appears to the Registrar that a matter (or part of it) should not be considered by a Medical Practitioners Tribunal or that an Interim Orders Tribunal should not consider making an order, the Registrar may refer the matter to a medical or lay Case Examiner for a decision as to whether the matter (or part of it) should be withdrawn. (3) Where paragraph (1) or (2) applies, a Case Examiner may decide that— (a) all or part of the matter referred to in that paragraph should be withdrawn; or (b) in the case of a matter that has been referred to a Medical Practitioners Tribunal, other than a non-compliance matter, the matter should be referred for consideration by a medical and lay Case Examiner under rule 10 or 11. (4) Where a decision is taken under paragraph (3) of this rule, the Registrar shall as soon as is reasonably practicable, serve notice in writing upon the practitioner and the maker of the allegation (if any), and shall give reasons for the decision in the notice. The Realistic Prospect Test 1 The “realistic prospect” test will apply to both the factual allegations and the question whether, if established, the facts would demonstrate that the practitioner’s fitness to practise is impaired to a degree justifying action on registration. It will reflect a genuine (not remote or fanciful) possibility. It is in no-one’s interest for cases to be referred to a medical practitioners tribunal when they are bound to fail. On the other hand, cases which raise a genuine issue of impaired fitness to practise justifying action on registration are for the medical practitioners tribunal to decide. 2 In performing their task, the case examiners and members of the Investigation Committee: a should bear in mind that the medical practitioners tribunal is required to be persuaded that the facts are more likely than not to be true: the facts need to be proven ‘on the balance of probabilities’. The standard of proof applicable in any proceedings is that applicable to civil proceedings; b are entitled to assess the weight of the evidence; c should not, however, normally seek to resolve substantial conflicts of evidence; d should proceed with caution (given that, among other considerations, the case examiners are working from documents alone and the evidence before them may be untested); e should proceed with particular caution in reaching a decision to halt a complaint where the decision may be perceived as inconsistent with a decision made by another public body with medical personnel or input (for instance, an NHS body, a Coroner or an Ombudsman) in relation to the same or substantially the same facts and, if the case examiners/ Investigation Committee does reach such a decision, should give reasons for any apparent inconsistency; f should be slower to halt a complaint against a practitioner who continues to practise than against one who does not; g if in doubt, should consider whether any further investigation is appropriate and in any event should lean in favour of allowing the complaint to proceed to a medical practitioners tribunal; h should bear in mind that whilst there is a public interest in medical practitioners not being harassed by unfounded complaints, there is also a public interest in the ventilation before a medical practitioners tribunal in public of complaints which do have a realistic prospect of establishing impaired fitness to practise; i in considering whether to issue a warning should bear in mind that the standard of proof is that applicable to civil proceedings. Guidance documents

[499]The GMC provides guidance for the initial evaluation process to the Registrar who is appointed to consider any referral that is made to the Respondent. This document is the Triage Manual for Assistant Registrars. Triage Manual for Assistant Registrars

[500]The guidance includes the following: 1 An allegation shall be considered by an Assistant Registrar (under authority delegated by the Registrar). 2 The Assistant Registrar (‘AR’) will consider whether the allegation falls within the categories of impairment set out in the Medical Act 1983. 3 The AR may, before deciding whether to refer an allegation, carry out investigations to assist with the triage decision. Making a triage decision Triage is the process for considering whether an allegation raises concerns that a doctor’s fitness to practise is impaired. Good Medical Practice clarifies that ‘serious or persistent failures to meet the standards [in Good Medical Practice] will put your registration at risk’, but not all breaches of GMP will raise a question of impairment. When assessing concerns at the triage stage, the AR is first required to identify whether the concerns meet the threshold. You should refer to the decision-making flowchart for more details. The Triage team has an agreed SLA of seven days from opening an enquiry to making a Triage decision on the enquiry. Vexatious complaints The GMC does have some capacity to close concerns where they are clearly vexatious. If the AR is concerned that a complaint may be clearly vexatious and unsubstantiated, they should escalate this to an investigation manager to consider whether the complaint should be considered under our vexatious complaints policies, and what next steps to take. The Triage Test Section 35C(2) sets out the following grounds (‘heads’) by which a doctor’s fitness to practise may be found to be impaired:• misconduct;

• deficient performance;

• adverse physical or mental health; or

• a conviction or caution in the British Islands for a criminal offence, or elsewhere for an offence which would constitute a criminal offence if committed in England and Wales;

• a determination by a body either in the British Isles or overseas

• not having the necessary knowledge of English Under rule 4(2) of the General Medical Council (Fitness to Practise) Rules (‘the rules’), the AR has a duty to refer an allegation to the case examiners where they consider that it falls within section 35C(2) of the Medical Act 1983. In other words, if an allegation raises questions about the doctor’s fitness to practise on the above grounds, the threshold for investigation under Stream 1 is met. Case examiner advice In certain instances it may be beneficial for an AR to obtain advice from a medical or lay case examiner (‘CE’) before making a decision. … However, CEs can only provide guidance; it is the AR’s responsibility to make the triage decision. A case examiner should not be asked to direct the outcome of an enquiry. Provisional Enquiries Rule 4(4) allows the GMC, in certain circumstances, to make further enquiries before making a rule 4(2) decision. Such enquiries can help us decide whether further investigation is warranted. We are able to exercise this power via a Provisional Enquiry (‘PE’): an initial enquiry, limited to gathering one or two discrete and easily obtainable pieces of information. What are the benefits? Provisional enquiries can help us to respond more quickly and proportionately, to accurately assess risk, avoid unnecessary investigation, and focus on those cases that require full investigation. Principles Whilst every enquiry should be considered on a case by cases basis, the AR may find it useful to bear in mind the following principles. Enquiries under Rule 4(4) may be suitable where:

• the allegation itself is unclear;

• it is unclear whether the allegation is serious enough to raise a question of impaired fitness to practice; or

• the allegation, on the face of it, is serious but the evidence may be unlikely to support a finding of impairment. Further information is needed to clarify whether the allegation raises a question of impaired fitness to practise. While the above principles provide a basic framework, ARs should refer in the first instance to the decision-making guidance for support on the approach to be applied. Mandatory Reporting and Public Interest Concerns From 1 April 2017, a new legal duty came into force that requires the GMC to produce an annual report on the action we take as a result of qualifying disclosures (‘whistleblowers’) made to us. When an individual (for example, a complainant, a doctor or a witness) raises public interest concerns directly with the GMC, and meets the criteria for qualifying disclosure, we must record this information in Siebel so that we can fulfil our mandatory reporting obligations. Please see full guidance for when this information needs to be recorded. The RO / Employer Indicates that the doctor raised Public Interest Concerns locally As noted in Step 6 above the GMC requires any RO / employer who contacts the GMC to make a declaration on whether the doctor has raised Public Interest Concerns locally. When the RO / employer has confirmed to the GMC that the doctor has / has not raised concerns locally the following box should be completed by the IA: Doctors Triage Script Registration Raised RO Declared Licence Triage Outcome Public Raised PlC Outcome Reason Interest Concern Full Yes L Promoted registration Full with x No L Special… Depending on the answer from the RO / employer the box should either be completed with ‘Yes’ or ‘No’. If the RO / employer has not provided a response to the GMC on this question the flag should remain blank. The Doctor informs the GMC that they have raised Public Interest Concerns locally It may be the case that the doctor independently informs the GMC that they have raised Public Interest Concerns locally after a referral / complaint has been received. This may be linked to disclosure by the GMC or an entirely independent action on the part of the doctor. It is important that the GMC records when this occurs so that we have a record of the doctor’s response to compare with that of any RO / employer correspondence.

[501]The GMC provides Guidance for decision makers on provisional enquiries. This is a 76-page document dated November 2020. Given the length of this document, the relevant sections are quoted in the Judgment.

[502]GMC Thresholds is a 18-page document dated July 2021. The relevant sections are as follows: Last published: July 2021 GMC thresholds Introduction

[1]This guidance is for responsible officers (RO), medical directors and other relevant staff who are involved in the employment, contracting or management of doctors. It has been designed to clarify those matters where we can, and cannot, take action. This guidance explains the thresholds for referral to the General Medical Council (GMC). Our overriding obligation is to ensure public protection – we do not aim to resolve individual complaints or punish doctors for past mistakes, but rather to take action where we need to in order to protect patients, maintain the public’s confidence in the medical profession or maintain proper professional standards and conduct for the members of the profession.

[2]A detailed explanation of our fitness to practise procedures, including decision making at the end of a GMC investigation, can be found on our website, www.gmcuk.org.

[3]We can act on any information we receive from any source, which raises a question about a registered doctor’s fitness to practise. Common sources of information include patient complaints, referrals from responsible officers, employers, media reporting and notifications from the police and other bodies acting in a public capacity. Section 35C(2) of the Medical Act 1983 as amended states that a doctor’s fitness to practise can be impaired by any or all of the following: a misconduct b deficient professional performance c a criminal conviction or caution in the British Isles (or elsewhere for an offence which would be a criminal offence if committed in England or Wales) d adverse physical or mental health e not having the necessary knowledge of English f a determination (decision) by a regulatory body either in the UK or overseas to the effect that fitness to practise as a member of the profession is impaired.

[4]During an investigation we can consider all aspects of a doctor’s fitness to practise. In many cases we may consider not only the matters raised in the original complaint, but also any other concerns that have come to light during the investigation. Cases closed at an early stage Concerns that cannot raise an issue of impaired fitness to practise

[5]In some cases, it is clear from the outset that there is no need for us to investigate because the complaint is about matters that cannot raise an issue of impaired fitness to practise. We will normally close these cases without taking any further action.

[6]Examples of cases closed without any investigation are: a minor motoring offences not involving drugs or alcohol such as speeding or traffic light offences b a delay of less than six months in providing a medical report c a minor non-clinical matter such as rudeness d a complaint about the cost of private medical treatment Concerns relating to events that took place more than five years ago

[7]Where the events that gave rise to the concerns took place more than five years ago, we would only investigate if there is a public interest in progressing the matter despite the difficulties that arise as a result of the delay. …. Concerns that a doctor should reflect on

[10]Some concerns would not on their own raise a question about the doctor’s fitness to practise unless they were to be repeated. Although these concerns do not require a GMC investigation, they are matters that a doctor should reflect on as part of their appraisal and revalidation. We usually disclose these concerns to the doctor and their responsible officer, subject to having first notified the complainant of how we use their information and considering any concerns or specific requests they share with us about that use, unless it is impracticable or undesirable to do so for public interest reasons.

[11]If a doctor has no responsible officer, we disclose them to the doctor’s employers or contractors to satisfy ourselves that a complaint is not part of a wider pattern of concerns. We would only open an investigation if the information provided by the responsible officer/employer/contractor raised a question about the doctor’s fitness to practise.

[12]Examples of cases disclosed to the doctor and their responsible officer or shared with employers are: a complaints about the quality of treatment received where there is no indication of any serious risk to the patient or that the doctor acted significantly below appropriate standards. b complaints about doctors’ poor attitudes to patients, or failing to take their preferences into account. Provisional enquiries

[13]Some cases that appear to meet the threshold for an investigation are referred for provisional enquiries. These are cases where, although the allegation initially appears to be serious, we need more information to decide whether to investigate further. This may be because it isn’t clear whether there will be sufficient evidence to support the allegation, or because it isn’t clear if the allegation is serious enough to raise a question about the doctor’s fitness to practise and obtaining further information such as expert medical advice might clarify that the allegation is not as serious as it first appeared.

[14]If clarification is likely to be achieved by obtaining one or two pieces of discrete information that can be accessed relatively quickly then that information will be requested. This will help decide whether an investigation is needed or whether we close the case.

[15]Types of cases that typically lead to provisional enquiries are those where: a an allegation appears serious but the information we hold suggests aspects may be confused or based on a misperception or there may not be reliable evidence available to support it. b an allegation relates to a single clinical incident or a single clinical concern and we need information about the seriousness of the allegation and, where there is information to support the allegation, the doctor’s remediation in order to assess the likelihood of repetition. c an allegation relates solely to a doctor’s health and we need more information about their condition to assess if there is any risk to patients. d an allegation relates to the doctor’s practice and/or conduct in a clinical setting during the Covid-19 pandemic and the circumstances of the pandemic may be a key factor in explaining the doctor’s actions. Full investigation

[16]For the remainder of cases, we carry out a full investigation into the doctor’s fitness to practise before we decide what action to take. This may include taking witness statements, obtaining expert reports, or undertaking an assessment of the doctor’s health and/or performance. We must then decide whether we should conclude the case with no further action (with or without advice to the doctor), issue a warning, offer the doctor undertakings or refer the doctor for a hearing by a Medical Practitioners Tribunal. Cases where we are likely to take action

[17]In some cases, the allegations about a doctor are so serious that, if proven, they are likely to result in us taking action on the doctor’s registration. These types of case tend to fall within seven main headings: a sexual assault or indecency b sexual or improper emotional relationships with a patient or someone close to them c violence d dishonesty e unlawfully discriminating in relation to characteristics protected by law f knowingly practising without a licence g gross negligence or recklessness about a risk of serious harm to patients.

[18]Although the majority of concerns can be safely managed at a local level, allegations that fall within these categories are likely to meet the threshold to be referred to us unless they relate to allegations of low level violence or dishonesty outside a doctor’s professional practice which are unlikely to raise a question of impaired fitness to practise as detailed above in the guidance.

[19]Many of the cases we investigate concern the standard of the doctor’s medical practice, including the quality of the care and treatment provided by the doctor. Not all breaches of Good medical practice will require us to take formal action because many issues can be dealt with adequately by the responsible officer, employer or contractor. GMC action is more likely to be required where the allegations are of serious or persistent failures to meet the standards set out in Good medical practice.

[20]Allegations of serious or persistent failures to practise in accordance with the principles set out in Good medical practice can be categorised under the following domains: a knowledge, skills and performance b safety and quality c communication, partnership and teamwork d maintaining trust.

[21]Our ELAs provide advice to responsible officers on how to handle concerns about doctors and whether the threshold for referral is met on individual cases. They will also advise on the appropriate point at which a referral should be made depending on the seriousness of the concerns and the doctor’s willingness to engage in local remediation. The GMC threshold for referral is likely to be met when any of the following features occur and it is no longer appropriate to manage the concerns locally: a a doctor’s conduct or performance falls below the standard set out in Good medical practice and (including where attempts to improve the doctor’s performance locally have failed) there remains an unacceptable risk to patient safety. b a doctor about whom the responsible officer, employer or contractor has developed significant concerns disconnects from the responsible officer or leaves the employer or D290 contractor’s employment and the responsible officer, employer or contractor is not confident that alternative safeguards are in place. c local measures to address the concerns have failed either because the doctor is not complying with them or the concerns are too significant to be remediated at a local level. d a doctor has shown a deliberate or reckless disregard of clinical responsibilities towards patients that is too serious to be dealt with at a local level. e a doctor has abused a patient’s trust or violated a patient’s fundamental rights for example by performing a procedure or examination without consent or breaching their confidentiality. f a doctor has behaved dishonestly, fraudulently or in a way designed to mislead or harm others. g the doctor’s behaviour was such that public confidence in doctors generally might be undermined if we did not take action. h a doctor’s health condition is compromising patient safety and the risk cannot be safely managed at a local level – see below. i a doctor’s lack of knowledge of the English language is compromising patient safety and the risk to patients cannot be addressed locally. Making a referral

[32]Our employer liaison advisers are available to help ROs and employers understand our thresholds and procedures by providing support and advice at any stage, on a wide range of issues. If you have concerns about a doctor or a query about our thresholds or procedures, you should discuss this with your designated employer liaison adviser at the earliest opportunity. If a doctor connected to your designated body or working for or contracted by your organisation appears to have reached, or be close to, any of the thresholds (see paragraphs 17–31), you must contact us for advice on how to proceed. Please contact your designated employer liaison adviser (ELA) directly. Alternatively you can contact the team on 0845 375 0022 or by email at outreach@gmcuk.org.

[33]If you decide to make a referral, you should read the guidance on our website for responsible officers and others making referrals on behalf of an organisation. This can be found at www.gmcuk.org under the section entitled Concerns about doctors. Referrals should be made by completing the referral form in GMC Connect. If a referral is urgent and GMC Connect cannot be accessed, you should complete the referral form and send it to practise@gmc-uk.org in the first instance. Our Fitness to Practise directorate can also be contacted by telephone on 0845 357 0022.

[34]Any employer who is not the doctor’s designated body should consider speaking to the doctor’s responsible officer in the first instance unless the concerns are very serious or urgent. Many concerns can be appropriately dealt with by the responsible officer without the need for referral to the GMC. Where appropriate, the responsible officer will discuss whether the threshold for referral is met with their ELA and provide feedback to the non designated body. Further information

[35]This guidance summarises other guidance we have produced for our decision makers.

[36]More detailed guidance for Case Examiners, the Investigation Committee and Medical Practitioners Tribunals is available on our website, as is all our other guidance on the standards expected of doctors including Good medical practice. Public interest concerns Operational guidance [D134 - Date of last update: December 2021 Author of last update: Emma Hunter Contents• Initial receipt of referral

• Refusal to provide a declaration

• Referrer informs us of public interest concerns

• Doctor raises public interest concerns

• RO informs us of public interest concerns during employer or allegation of impairment disclosure

• Preparing for the pilot review group

• Flagging public interest concerns

• How to recognise public interest concerns have been raised on your case

• Public interest concerns and CE decisions Initial receipt of a referral In cases where patient safety issues have been raised locally by the doctor under investigation, the referrer should inform the GMC about this. This can be done in two ways: The normal process is for the referrer to complete a referral form in GMC Connect. This form has a section to confirm if the doctor has raised concerns with the organisation locally, prior to GMC referral. The declaration on the form should be signed by the referrer. In exceptional circumstances, eg due to urgency, a referral can be made by email or letter. The referral should confirm if the doctor has raised concerns locally. The reason for asking the referrer if the doctor has raised any patient safety concerns locally is so we can bear this context in mind when considering the referral. It is not so we can investigate the local patient safety concerns ourselves. Upon receipt of a referral where the doctor has raised concerns locally, Triage will check that the referrer has provided full details of the local concerns and try to obtain these. If there is any delay the enquiry will be put into PE to obtain this information. If the referrer does not complete the GMC declaration about whether the doctor has raised concerns locally, the case owner must ask them to complete and return that section of the form. If there is any difficulty in obtaining the declaration the IO should follow the steps set out in Refusal to provide a declaration. Refusal to provide a declaration If the referrer refuses to provide the GMC with the declaration, the case owner must discuss this with their manager. The manager will decide whether this matter should be escalated to the local Employer Liaison Adviser to raise with the referrer. If necessary, the manager can also request advice from a Case Examiner to assist with their If there is still no declaration received, the case should be escalated to the PIC review group for consideration. In most cases, it is likely we will progress on the assumption that the doctor has raised patient safety concerns locally until we have evidence to indicate otherwise. The escalation route is as follows: Responsible officer / Employer fails to return the Public Interest Concern declaration IO raises failure to make Public interest declaration with IM IM makes decision on whether to escalate to ELA. If necessary IM can obtain advice from the PIC review group ELA raises lack of response with RO/Employer THe ELA returns to the IO/IM with the response. If necessary further escalation to the PIC review group Referrer informs us of public interest concerns If the referrer has confirmed that the doctor has raised patient safety concerns at a local level prior to referral, the enquiry should be referred to the PIC review group for discussion. To do this:

[1]Email the PIC review group mailbox at PICreviewgroup@gmc-uk.org to let them know you have a case to go to the group.

[2]Take your case to the PIC review group, so they can confirm if there is a PIC context. The group evidence on the allegations raised by the referrer.  Whether the enquiry/investigation needs to be flagged as a public interest concern matter on Siebel.  Whether further discussion at the pilot review group will be required when the evidence requested has been received. Doctor disclosure This should be completed in the usual way, letting the doctor know that the referrer has told us about the public interest concerns they have raised locally. The doctor should be given an opportunity to comment, and informed that we usually disclose these comments to the referrer and to let us know if they have any concerns about this disclosure. If the doctor provides comments and  does not have concerns about their comments being disclosed, any further information provided by the doctor should be forwarded on to the referrer for further comment.  does have concerns about their comments being disclosed then an IM must consider these, and make a decision about whether it is appropriate to forward the doctor’s comments to the referrer for a response. Advice can also be sought from the PIC review group, if needed. The doctor should be informed of the decision. An AR Concerns decision should not be raised for this decision, as it doesn’t relate to the use of the doctor’s personal information. The consideration and decision of the investigation manager should be documented on the case in a sensible location and marked as a key case document. Disclosing the doctor’s comments to the referrer Where the doctor’s comments are being disclosed to the referrer the case owner should use the ‘PIC – disclosure of doctor comments to referrer’ letter template. The referrer will be provided with two weeks to respond to the doctor’s comments, after which the matter will be referred to a manager for review and a decision on whether any further steps are necessary. The manager can advise:

[1]Updates to the case plan and information to be obtained by the IO to independently corroborate the allegations raised in the referral.

[2]Which flags need to be ticked in Siebel to identify the public interest concerns context to the enquiry/investigation.

[3]To return the case to the PIC review group for further advice. Doctor raises public interest concerns There may be occasions when the doctor raises public interest concerns with the GMC either in response to the information and declaration of the referrer or independently. This will usually happen during an investigation. If this happens, you should: 1 Email the PIC review group mailbox at PICreviewgroup@gmc-uk.org to let them know you have a case to go to the group. 2 Take your case to the PIC review group, so they can confirm if there is a PIC context. The group evidence on the allegations raised by the referrer.  Whether the enquiry/investigation needs to be flagged as a public interest concern matter on Siebel.  Whether further discussion at the pilot review group will be required when the evidence requested has been received. 3 If the PIC review group confirms there is a PIC context to the enquiry/case, then you will need to request legal advice on an LF2 form. Legal will then oversee the case to ensure the focus remains on obtaining objective evidence to corroborate the allegations raised in the referral. We should then inform the doctor that we usually disclose their comments to the referrer. The doctor should be asked to let us know if they have any concerns about us making this disclosure. If the doctor has concerns about their comments being disclosed these should be considered and a decision taken by an investigation manager whether it is appropriate to forward the doctor’s comments to the referrer for a response. Advice can also be sought from the pilot review group, if required. The doctor should be informed of the decision. An AR Concerns decision should not be raised for this decision, as it doesn’t relate to the use of the doctor’s personal information. The consideration and decision of the investigation manager (and pilot review group if advice was sought from them) should be documented on the case in a sensible location and marked as a key case document. Disclosing the doctor’s comments to the referrer Where the doctor’s comments are being disclosed to the referrer the case owner should use the ‘PIC – disclosure of doctor comments to referrer’ letter template. The referrer will be provided with two weeks to respond to the doctor’s comments. after which the matter will be referred to a manager for review and a decision on whether any further steps are necessary. RO informs us of public interest concerns during employer or allegation of impairment disclosure When we complete employer or allegation of impairment disclosure an employer who is not the referrer may complete the public interest declaration and confirm that the doctor has raised patient safety concerns at a local level. If this happens, you should: 1 Email the PIC review group mailbox at PICreviewgroup@gmc-uk.org to let them know you have a case to go to the group. 2 Take your case to the PIC review group, so they can confirm if there is a PIC context. The group evidence on the allegations raised in the original referral.  Whether the enquiry/investigation needs to be flagged as a public interest concern matter on Siebel.  Whether further discussion at the pilot review group will be required when the evidence requested has been received. 3 If the PIC review group confirms there is a PIC context, then you will need to request legal advice on an LF2 form. Legal will then oversee the case to ensure the focus remains on obtaining objective evidence to corroborate the allegations raised in the referral. We should then inform the doctor that we usually disclose their comments to the referrer. The doctor should be asked to let us know if they have any concerns about us making this disclosure. Preparing for the PIC review group

[1]If you have an enquiry or case that needs to be considered at the PIC review group, you should email PICreviewgroup@gmc-uk.org and attach the completed PIC referral form and the bundle of documents for review.

[2]You will receive a response to let you know when the next review group meeting is scheduled and are requested to confirm your availability to attend. If you are unable to attend, you should ask your manager to attend the meeting and present the case on your behalf.

[3]You will have 5-10 minutes to present your enquiry or case, depending on how complex it is. The group may not have had chance to read the documents you sent by email, so you must clearly set out the key information they will need to provide advice on your next steps.

[4]The following questions cover the key information the group will need to know about your enquiry/case:  When did the doctor raise concerns (and how did they raise them? Formally/verbally?)  When were concerns about the doctor raised? Was this before or after the doctor raised patient safety concerns?  Were the doctor’s concerns investigated locally? If so, when and what was the outcome?  Were concerns about the doctor investigated locally? If so, when and what was the outcome?  Are the concerns about the doctor related to the patient safety concerns the doctor raised? I.e. could the patient safety issues have impacted on the doctor’s ability to practise safely?  Do we have independent corroboration of the concerns raised about the doctor eg. a CQC report or other report independent of the trust(s)?

[5]The PE IMs will be chairing the PIC review group and will circulate a summary of the pilot review group’s discussion of your enquiry/case and agreed actions following the meeting. This email should be saved in Siebel as a record of the group’s advice. Flagging public interest concerns Where public interest concerns have been raised, there are a number of ways in which this should be recorded in Siebel. The GMC has a legal obligation to report when a complainant advises the GMC that they have raised public interest concerns. The information can be flagged in the following ways: Complainant raises public interest concerns From 1 April 2017, the GMC has had a legal duty to produce an annual report on the action we take as a result of qualifying disclosures (‘whistleblowers’) made to us. When an individual (for example, a complainant, a doctor or witness) raises public interest concerns directly with the GMC, and meets the criteria for qualifying disclosure, we must record this information in Siebel so that we can fulfil our mandatory reporting obligations If the qualifying disclosure criteria are met, the following flag should be completed on the enquiry home page: This box being ticked is how you can identify that mandatory reporting has been engaged on an enquiry/case. This is used to obtain data for our mandatory annual report of qualifying disclosures. Referrer indicates the doctor has raised public interest concerns locally Information received at Triage: the IA or AR at Triage will set the flags for the information received from the referrer. Information received during the investigation: the following box should be completed at enquiry level: Depending on the answer from the referrer the box should either be completed with ‘yes’ or ‘no’. If the referrer has not provided a response the flag should remain blank. When it has been confirmed that the doctor has raised public interest concerns at a local level, the case owner must ensure this has been flagged appropriately on Siebel. Once you have received the confirmation of their status as a doctor who has raised concerns locally, and Triage has not previously flagged them as such, you should complete the following box on Siebel: This will complete the process of identifying the doctor as an individual who has raised public interest concerns locally and will enable the GMC to compare the response of the doctor with the referrer’s own response. How to recognise that public interest concerns have been raised on your case If the information was obtained via the Triage team, they will have already considered the public interest concern and if appropriate updated Siebel. If this is the case an icon will be seen on the case home page indicating their decision as shown below: The two different icons have the following meaning: The doctor has confirmed/advised they have raised public interest concerns locally The RO has told us that the doctor has raised public interest concerns locally These icons only appear on the case where the information was brought to our attention, and do not pull through to future cases. Public interest concerns and CE decisions When raising the R8 CE decision you must flag in the CARF that the doctor has raised public interest concerns locally using the dropdown box on the front of the CARF. You should also provide a summary of the public interest concerns context, so the CEs can consider this when making their