Suresh & Ors v General Medical Council [2026] EWCA Civ 955

[2026] EWCA Civ 955Case No CA-2025-000959
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
DEPUTY JUDGE MARCUS PILGERSTORFER KC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24 July 2026
Before
THE LADY CHIEF JUSTICE OF ENGLAND AND WALESLORD JUSTICE BEAN (Vice President of the Court of Appeal, Civil Division)LADY JUSTICE WHIPPLE
Between
SURESH AND OTHERSAppellantsGENERAL MEDICAL COUNCILRespondent
Jeremy Hyam KC and Victoria Webb (instructed by Bindmans LLP) for AppellantsMartin Forde KC and Peter Mant KC (instructed by GMC Legal Department) for RespondentHearing Hearing date: 23 June 2026
Judgment Approved by the court for handing down
[1]On 2 May 2018, Dr Sridharan Suresh ("Dr Suresh"), a consultant anaesthetist with a distinguished and unblemished professional record, took his own life after he had been notified earlier that day by the General Medical Council (“the GMC”) that it had opened an investigation into his fitness to practise, and that his case was to be referred to an Interim Orders Tribunal (“IOT”). Although the appeal raises questions of law, and the essential facts are not in dispute, it should not be overlooked that the case arises out of a great tragedy for Dr Suresh’s family.

The facts

[2]Dr Suresh was employed by the North Tees and Hartlepool NHS Trust ("the Trust") working at the University Hospital of North Tees. In addition, he had a private practice at the Grace Dental Practice and several other private hospitals. Dr Suresh was married to Dr Visalakshmi Suresh, the First Appellant, and had been for some 20 years. The couple had two children, Mukunth and Tharun, who are the (Second and Third) Appellants.[3]Dr Visalakshmi Suresh's evidence was that her husband was at the height of his career, with an outstanding record of performance and that he had worked very hard for his achievements and his position meant a lot to him. In their evidence, several of his colleagues (Drs Aslam, Brohi and Francis) spoke in similarly positive terms about his professional and personal qualities. There was no dispute before us that Dr Suresh had an exemplary record.[4]On 29 March 2018, a complaint was made to the police of a sexual assault on a teenage girl following a dental procedure conducted at the Grace Dental Practice. It was alleged to have occurred on 26 March 2018. It is unnecessary for present purposes to set out the complaint in any detail, but it should be noted that the complainant’s description of the alleged offender was said by the Appellants simply not to apply to Dr Suresh.[5]On 3 April 2018, the Suresh family returned from a family holiday in the early hours of the morning. Dr Suresh later went to work as usual.[6]That day the police made contact with the Grace Dental Practice and ascertained that Dr Suresh had been the anaesthetist on duty on 26 March 2018. Officers made contact with the Trust and attended on Chris Tulloch, Deputy Medical Director. Chris Greaves, General Manager Anaesthetics, was identified to act as an independent management support officer for Dr Suresh.[7]DC Harris and DC Lee then spoke to Dr Suresh. After outlining the allegation, they described him as "quite upset", "shocked", and "visibly shaking". Arrangements were made for Dr Suresh to attend the local police station for interview, which he did voluntarily with a solicitor. He answered all questions and denied the allegation. At this point DC Harris found him no longer to be visibly shaking and considered that he gave no indication he needed emotional support or counselling. Dr Suresh was released under investigation.[8]After the interview, Ms Greaves telephoned Dr Suresh offering him support through Occupational Health, but this was declined. Due to the nature of the allegation the police referred the case to social services. DS Hodgson telephoned Dr Visalakshmi Suresh at around 6pm to undertake immediate safeguarding checks and it was agreed no unsupervised contact would take place between Dr Suresh and his youngest son.[9]Dr Visalakshmi Suresh later described being able to see the stress and shock on her husband's face that evening. He told her that he had been suspended from work and had a very difficult interview with the police. He did not share the details of the allegation.[10]On 11 April 2018 Dr Suresh was told he would be suspended for an initial 2 week period. Dr Dwarakanath, the Trust’s Medical Director, told him the Trust was fully supporting him and not investigating him.[11]On 16 April 2018, DS Campbell notified the GMC by email that the police were investigating Dr Suresh. After setting out some details of the complaint, the email continued: “SURESH has been interviewed voluntarily under caution at Middlesborough Police Station on 03/04/18. He has denied any sexual contact with the complainant. The trust have been informed and SURESH is currently under suspension while this investigation is concluded. There are a number of lines of enquiry still to be conducted in relation to this investigation, this is ongoing."[12]On 17 April 2018, the GMC considered the referral and made the following record:
"The doctor is currently suspended by his Trust. He has denied all allegations. We have had no referral and the doctor has not yet made any self-referral to the GMC (but he has not yet been charged). It is not felt appropriate for an allegation of failure to advi[s]e the GMC to be added for Decision at this time. These are serious allegations of misconduct which, if proven, may require action on the doctor's registration. Although the doctor has not yet been charged the allegations are of a sufficiently serious nature – and involve a minor – that the matter should be promoted for Criminal Conviction investigation now. This has been discussed with Heather Cowap who has agreed to take the case. This matter is therefore promoted accordingly."
This matter is therefore promoted accordingly."[13]In a statement subsequently put in evidence at an inquest Dr Dwarakanath said that if he had been informed of the timing of the GMC referral he would have made immediate personal contact with Dr Suresh to inform him of this, advised that the Trust had not instigated the referral, and remained entirely supportive.[14]On 18 April 2018, Heather Cowap, GMC Investigation Manager, made a case plan. This included obtaining information about any previous convictions, and monitoring the judicial process to conclusion. In relation to interim orders, the following was recorded: "As Dr has been interviewed by police & this is against a patient who is a minor. immediate [case examiner] IOT decision required".[15]On the same day, Dr Suresh was informed by the Trust that his suspension was being extended.[16]On 19 April 2018 the GMC informed the police that the information received by the GMC had met the threshold to open an investigation into Dr Suresh’s fitness to practise but that the GMC would await the outcome of any judicial process before proceeding to an investigation. The GMC asked whether the police objected to their email being disclosed to the doctor since that was a pre-requisite of the GMC being able to instigate its interim orders procedure.[17]The GMC also sent the matter to a Case Examiner to decide whether a referral to an IOT was necessary.[18]On 1 May 2018 the police confirmed to Elise Marsden at the GMC that there were no objections to disclosing the information in the referral to the GMC to Dr Suresh. Shortly after 1pm that day Ms Marsden emailed Dr Suresh to say that she was writing on behalf of the GMC; that she “had some confidential information to disclose” to him and asked him to confirm that the email address to which she was writing was an appropriate point of contact. She also sent the case to a Case Examiner to decide whether a referral to an IOT was necessary.[19]That evening Dr Suresh told his wife about the email from the GMC. It had come as a complete shock and he was very upset and worried about it. All his professional hard work could be lost if there was a GMC investigation which could last years and delay his return to work.[20]On 2 May 2018, Dr Suresh had breakfast with his wife and son. He said he was going to call the police that day (but in the event did not do so). He also said he was going to complete some appraisal paperwork albeit he was concerned how the allegation would impact it. Dr Visalakshmi Suresh stated to the Court that during the morning her husband expressed many hopes for the future and was forward planning. However, when she left for work she thought he looked worried. In a statement for the coroner at §17, she dealt with this further: "Before I left for work I could see that my husband was worried. In my previous statement I have stated that that morning when I left for work, my husband was his usual self and did not show signs of distress. I had written that statement not long after my husband had taken his own life and I was not explaining myself well. What I meant was that although he was clearly distressed, I had not realised that he was so distressed that he would take his own life. Had I known this I would have never left him".[21]The subsequent events of 2 May 2018 were set out in the judgment below and should be quoted in full:- “99. Meanwhile, during the morning of 2 May 2018, the GMC Case Examiner had returned the decision to Ms Marsden that a referral to an Interim Orders Tribunal was necessary in the interests of patient safety. It was recognised that the information available was limited and investigations were at an early stage, but weight was attached to the fact the allegation was particularly serious and if substantiated would suggest a risk to patients. Ms Marsden obtained a date for an Interim Orders Tribunal hearing and prepared an initial letter to Dr Suresh.100. The communication was sent to Dr Suresh by Ms Marsden by email at 2.05pm on 2 May 2018. The covering email introduced Ms Marsden as Dr Suresh's point of contact and referred to an attached letter that was also to be sent via post. The covering email asked for a work details form and an email notification form to be returned by 9 May 2018. The email also stated:” "I understand that this might be a stressful time, so if you have any questions regarding this letter please contact me directly and I will be happy to help."101. The enclosed letter explained that a referral from Cleveland Police had been received about "alleged sexual contact with a patient" and attached a copy of the referral. The letter informed Dr Suresh that an investigation into his Fitness to Practise had been opened and that Elise Marsden would be responsible for managing it. The letter stated:
"I know that receiving this letter and being involved in this process is a stressful experience. I hope you understand after reading the information provided that we need to open an investigation to make sure there are no ongoing risks to patients, as our role is to protect the public. We are keen to work with you to resolve this as quickly as possible." 102. The letter continued that the GMC wanted to find out more information to see if it was correct that Dr Suresh's fitness to practise medicine was potentially impaired. It explained the next step was to write to Dr Suresh's employing organisations to inform them of the investigation and to ask for information to help about the investigation. It asked for the work details form to be returned by 9 May 2018. 103. The letter explained that sharing relevant information early in the process could help make the investigation quicker and stated that Dr Suresh could send any comments he wanted the GMC to consider by 30 May 2018. Areas of potential comment were outlined, including "[w]hether you agree with the information we have received"
. Dr Suresh was advised to contact his medical defence organisation or the British Medical Association. 104. The letter then turned to Interim Orders and explained that a Case Examiner had reviewed the information available and had decided that Dr Suresh should attend before an Interim Orders Tribunal. A copy of the referral was attached. The date and time of the hearing was outlined and Dr Suresh was provided with information about the powers of the tribunal and where to find more information. A bundle of documents considered by the Case Examiner and to be considered by the Interim Orders Tribunal was enclosed. The procedure for making written submissions ahead of the hearing was outlined. 105. The letter concluded by stating:
"We understand that being under investigation can be stressful and we will try our best to finish our investigation as soon as possible. Please contact your investigation adviser Elise Marsden if you have any queries"
. Enclosed with the letter was: i) the Decision to refer to an Interim Orders Tribunal; ii) a guide for doctors reported to the GMC; iii) a Doctors Support Service leaflet - this document gave details of a service providing "dedicated confidential emotional support to any doctor involved in a fitness to practise case". Telephone and email contact details were included; iv) Imposing Interim Orders – Guidance for the IOT and MPT; v) Information for doctors whose cases are due to be heard by an Interim Orders Tribunal; vi) work details form; vii) email notification form; and viii) documents to be presented to the Interim Orders Tribunal. 107. At 3.22pm on 2 May 2018 Dr Suresh messaged Dr Jagannathan informing him that things were "getting serious" and that the police had written to the GMC and he had been asked to appear for their investigation and to disclose all the places he does work. He sent a similar message at the same time to Dr Aslam. At 3.23pm, Dr Suresh also forwarded to Dr Jagannathan a copy of the email he had received from the GMC. 108. Dr Aslam replied saying "Please get advice from [Dr Jagannathan], everyone is jumping the gun before the conclusion of investigation. [DC Davidson's] phone gone straight to answer service". Dr Jagannathan replied saying it was serious, and that Dr Suresh needed to get Premium Medical Protection involved. At Dr Suresh's request he agreed to call him after his list. 109. At 3.52pm, Dr Suresh left the family home. At 4.25pm he sent an email to his wife from his iPhone. The email denied he had done anything wrong. Dr Visalakshmi Suresh only saw this email many days later. She returned home from work at 6pm on 2 May 2018 to find her son alone. She tried to call her husband but to no avail. She then called Dr Jagannathan who said he was coming to the house. When Dr Jagannathan arrived, he told her that her husband had died. The police later arrived and confirmed that Dr Suresh's body had been found in the River Tees.” "I understand that this might be a stressful time, so if you have any questions regarding this letter please contact me directly and I will be happy to help." "I know that receiving this letter and being involved in this process is a stressful experience. I hope you understand after reading the information provided that we need to open an investigation to make sure there are no ongoing risks to patients, as our role is to protect the public. We are keen to work with you to resolve this as quickly as possible." "We understand that being under investigation can be stressful and we will try our best to finish our investigation as soon as possible. Please contact your investigation adviser Elise Marsden if you have any queries". i) the Decision to refer to an Interim Orders Tribunal; ii) a guide for doctors reported to the GMC; iii) a Doctors Support Service leaflet - this document gave details of a service providing "dedicated confidential emotional support to any doctor involved in a fitness to practise case". Telephone and email contact details were included; iv) Imposing Interim Orders – Guidance for the IOT and MPT; v) Information for doctors whose cases are due to be heard by an Interim Orders Tribunal; vi) work details form; vii) email notification form; and viii) documents to be presented to the Interim Orders Tribunal.[22]A coroner's inquest was held on 25 – 27 February 2020. The cause of death was recorded as suicide. In a letter of 9 March 2020, the Coroner wrote to the GMC asking it to implement actions in two areas for development: "1) In cases where referrals to the GMC are made by the police, a) The GMC should contact the Police as soon as they are able to and ask if they are aware whether the Doctor is vulnerable or has welfare issues. b) The GMC should ask the Police as soon as they are able to whether the Doctor's Employer is aware of the referral. In the event that the Employer is aware of the referral the GMC should contact the Employer to enquire whether the Doctor is vulnerable or has any welfare concerns. 2) In the first email sent to a Doctor from the GMC there should be an invitation to the Doctor to telephone the GMC if they are feeling vulnerable or have any welfare concerns. This would then give the GMC the ability to undertake an initial risk assessment and consider appropriate support." a) The GMC should contact the Police as soon as they are able to and ask if they are aware whether the Doctor is vulnerable or has welfare issues. b) The GMC should ask the Police as soon as they are able to whether the Doctor's Employer is aware of the referral. In the event that the Employer is aware of the referral the GMC should contact the Employer to enquire whether the Doctor is vulnerable or has any welfare concerns.[23]The GMC confirmed these actions had been implemented by letter to the Coroner of 3 April 2020.

The claim against the GMC

[24]On 28 September 2022 a claim was issued by Dr Suresh’s widow and children against the GMC alleging that “the acts and/or omissions of the Defendant, its employees or agents caused or contributed to Dr Suresh’s death”. There were claims for damages for negligence and also claims under sections 7 and 8(1) of the Human Rights Act 1998. The heart of the claim in negligence is to be found at paragraphs 36-37 of the Particulars of Claim:- “DUTY OF CARE 36. In performing its statutory function as regulator by carrying out its FTP procedures, the GMC owed to the Deceased, as a registrant, a duty:36.1 to take all reasonable care to avoid acts or omissions which might foreseeably cause him psychiatric injury; and36.2 to take all reasonably practicable steps to avoid or minimise the risk of psychiatric injury to him. BREACH OF DUTY 37. The GMC, its employees or agents were in breach of the duty of care which they owed to the Deceased in that they:37.1 failed to recognise or take account of the fact that the Deceased faced a foreseeable risk of psychiatric injury, in light of the matters set out at paragraphs 33 to 35 above;37.2 failed to take any or any adequate steps to avoid or minimise the risk of psychiatric injury by:37.2.1 seeking to ascertain whether the Deceased had been made aware of the GMC referral, either by the Police or the Trust or otherwise;37.2.2 seeking to ascertain whether any risk assessment for psychiatric injury, self harm or suicide had been undertaken by the Police, and if so, what was the outcome of the same;37.2.3 seeking to ascertain whether any measures were in place to support and protect the Deceased on receipt of the referral notification from the GMC;37.2.4 liaising with the Trust (whether through Dr Dwarakanath or otherwise) in relation to the referral, the investigation, and the available support and protection for the Deceased;37.2.5 using the GMC’s ‘FTP suicide tool’ to handle the interaction with the Deceased more sensitively;37.2.6 modifying the tone and/or content of the letter of 2 May 2018, in particular so as to:37.2.6.1 make it clear that the GMC had not concluded that the allegations were well-founded;37.2.6.2 avoid informing the doctor that “we’ve identified some areas of good medical practice that have been called into question”; and37.2.6.3 clarify the basis on which other employing organisations would be contacted and the information which would be provided; and37.3 in the premises, exposed the Deceased to a foreseeable risk of injury.” 36.1 to take all reasonable care to avoid acts or omissions which might foreseeably cause him psychiatric injury; and 36.2 to take all reasonably practicable steps to avoid or minimise the risk of psychiatric injury to him. 37.1 failed to recognise or take account of the fact that the Deceased faced a foreseeable risk of psychiatric injury, in light of the matters set out at paragraphs 33 to 35 above; 37.2 failed to take any or any adequate steps to avoid or minimise the risk of psychiatric injury by: 37.2.1 seeking to ascertain whether the Deceased had been made aware of the GMC referral, either by the Police or the Trust or otherwise; 37.2.2 seeking to ascertain whether any risk assessment for psychiatric injury, self harm or suicide had been undertaken by the Police, and if so, what was the outcome of the same; 37.2.3 seeking to ascertain whether any measures were in place to support and protect the Deceased on receipt of the referral notification from the GMC; 37.2.4 liaising with the Trust (whether through Dr Dwarakanath or otherwise) in relation to the referral, the investigation, and the available support and protection for the Deceased; 37.2.5 using the GMC’s ‘FTP suicide tool’ to handle the interaction with the Deceased more sensitively; 37.2.6 modifying the tone and/or content of the letter of 2 May 2018, in particular so as to: 37.2.6.1 make it clear that the GMC had not concluded that the allegations were well-founded; 37.2.6.2 avoid informing the doctor that “we’ve identified some areas of good medical practice that have been called into question”; and 37.2.6.3 clarify the basis on which other employing organisations would be contacted and the information which would be provided; and 37.3 in the premises, exposed the Deceased to a foreseeable risk of injury.”

The application to strike out

[25]The GMC, having served a Defence, applied to strike out the claim pursuant to CPR 3.4, alternatively an order summarily dismissing the claim under CPR 24.3. It was not suggested on either side that there is any material distinction for present purposes between these two forms of relief.[26]The GMC contended below, as it did before us, that the claims were bound to fail because(1) the GMC does not owe a common law duty of care to individual doctors under investigation; and(2) the pleaded facts and evidence taken at their highest were not capable of establishing that Dr Suresh’s suicide was reasonably foreseeable. The Appellants were, as already noted, putting forward an alternative claim under sections 7 and 8(1) of the Human Rights Act 1998 by reference to Article 2 of the ECHR. The latter claim was struck out by the judge and that aspect of his decision is not the subject of the appeal to this court.[27]The application came before Marcus Pilgerstorfer KC sitting as a deputy judge of the High Court (“the judge”) on 17 and 18 December 2024. In a reserved judgment handed down on 3 April 2025 he allowed the application and ordered that the “claims be struck out, alternatively there be summary judgment for the Defendant”. He refused permission to appeal. The judgment below Strike out

The judgment below

[28]The judge noted that the parties were agreed as to the legal principles to be applied on the application to strike out or for reverse summary judgment. He concluded that it was a proper case for the exercise of the power. Duty of care[29]The judge approached his task on the central issue of whether a duty of care arose on the assumption, in the Appellant’s favour, that it could be shown that psychiatric harm to Dr Suresh, or his suicide, was a foreseeable consequence of a notification by the GMC that he was to be the subject of an investigation. The judge set out in detail why he concluded that no duty of care was owed by the GMC. He observed that, had that not been the case, the argument put forward by the Appellants on foreseeability was not such that it would have been struck out.[30]The judge noted at [133] that in a quartet of cases from 2018 onwards the Supreme Court had revisited the liability of public authorities in the tort of negligence. The four cases he referred to were Robinson v Chief Constable of West Yorkshire [2018] AC 736; CN v Poole Borough Council [2020] AC 780 (“Poole”); HXA v Surrey County Council [2024] 1 WLR 335 (“SXH”) and Tindall v Chief Constable of the Thames Valley Policy [2025] AC 1046 (“Tindall”). These had, adopting the phrase of Lord Reed JSC in Poole, established a “clearer framework” for this part of the law. He noted that in Tindall the Supreme Court had firmly established or reestablished that the liability of public authorities in the tort of negligence to pay compensation is governed by the same principles that apply to private individuals. The judge cited extensively from the judgment of Lord Reed in Robinson, to which I shall return later. At [139] the judge noted that in the Robinson line of cases, the Supreme Court had explained that generally public bodies, like private individuals do not owe a duty to confer benefits on individuals such as protecting them from harm. The preferred distinction which has evolved in the authorities is between “causing harm” (making things worse) and “failing to confer a benefit” (not making things better).[31]There were, however, well-established exceptions to the principle. One is where a public body assumes responsibility for an individual’s safety on which the individual has relied. Another is where the public body has created the source of danger which would not otherwise have existed or was in a position to control the source of danger, as was the case in Dorset Yacht Co Ltd v Home Office [1970] AC 1004.[32]Applying the framework of the authorities to the present case, the judge noted that it was accepted on behalf of the GMC that in one respect the claim is founded on a positive act taken by the GMC, namely the sending to Dr Suresh of the email and letter of 2 May 2018 notifying him of the allegation and investigation of his fitness to practise, requiring him to give details of where and for whom he was carrying out medical services, and giving notice of the forthcoming Interim Orders Tribunal (“IOT”) to be held on 22 May 2018. The judge accepted Mr Hyam’s characterisation of this as a positive act. In the language of recent cases the act could be alleged to have “made matters worse” rather than being an example of the GMC allegedly failing to protect Dr Suresh from harm.[33]The judge turned to the statutory context in this case and cited in particular the decision of the House of Lords in Jain v Trent Strategic Health Authority [2009] 1 AC 853. He held that the fact that the GMC was obliged by the statutory scheme to send notification of the allegation to Dr Suresh, and to do so as soon as reasonably practicable after the referral for consideration under Rule 8, was highly relevant. The judge noted that the overarching statutory objective of the GMC was the protection of the public. He held at [170] that “the recognition of a duty of care to those who are subject to investigation would in my view risk giving rise to clear conflicts where the interests of those subject to the investigation would point in one direction whereas the duty to investigate in accordance with the overarching objective would point to the other”.[34]He noted that the only steps the GMC had taken by the time of Dr Suresh’s death were(1) to refer the allegation under Rule 8(2) to case examiners and then to the IOT,(2) to notify Dr Suresh of the allegation, the investigation and the referral to the Tribunal and(3) to require him to give information about where he was employed or engaged. All these steps were governed by the statute and rules and the act of sending the notification of 2 May 2018 was an act which the GMC was obliged to take.[35]At [172] the judge considered the allegation that the GMC failed to modify the tone and content of the letter of 2 May 2018 to make it clear (among other things) that the GMC had not concluded that the allegations were well-founded. The judge observed that while the language deployed in the Particulars of Claim is that of omissions, in reality the complaint is about the sending of the letter and its contents, which he had accepted was a positive act. But the allegations of failure to modify the tone and the content of the letter, the judge considered, would cut across the statutory scheme. The judge similarly rejected Mr Hyam’s argument that the GMC had a discretion to delay notification to the doctor or to have notification delivered through a named contact such as the Responsible Officer acting under Section 45B of the Medical Act 1983 and regulations made under the Act. The judge found that even if the GMC had a discretion concerning the precise manner in which it would “write to the practitioner” in compliance with Rule 7(1), it nevertheless had to exercise its powers in accordance with its statutory duties.

The judge said at [176]:

[36]- “Accordingly, I conclude that applying the principles established in the cases discussed above, a duty of care cannot arise in respect of the GMC's communication with Dr Suresh on 2 May 2018. This would be incompatible with the statutory scheme which the GMC were obliged to operate.”

The judge went on to consider other pleaded allegations of negligence:

[37]failure to recognise that Dr Suresh was at foreseeable risk of psychiatric injury; failure to ascertain whether he was aware of the GMC referral from the police or the Trust; failure to ascertain whether any risk assessment had been undertaken by the police and to ascertain whether measures were in place to support him when he received the GMC communication. He found that whether these allegations were viewed as being of positive acts or of omissions, a duty of care including them could not be recognised. It would “create tension and potential conflict with the statutory duties owed by the GMC when assessing the steps it should take.”[38]At [182] to [188] the judge rejected the argument that the case fell within the category of a situation in which a public authority had assumed responsibility towards Dr Suresh. He noted that in Poole the Supreme Court had rejected a submission that a public authority could never assume responsibility by operating a statutory scheme, but held at [187] that the statutory functions of the GMC did not, by their nature, involve the GMC assuming or undertaking a responsibility to Dr Suresh to perform its functions with reasonable care. He considered that the Particulars of Claim did not plead any basis from which an assumption of responsibility could be inferred. The judge also rejected at [190] the argument that the GMC were in a position to control a source of danger so as to bring into play the “Dorset Yacht exception”.[39]Having undertaken at [191] to [216] a review of the authorities prior to Robinson relied on by Mr Forde KC for the GMC and their subsequent rationalisation in Robinson, the judge concluded:- “217. Pulling the threads together: i) Applying general principles in accordance with the framework identified in Robinson, in my judgment it would be inconsistent with the statutory scheme established under the Act and the Rules to hold that the GMC owes a duty of care to a doctor subject to investigation in relation to the timing, manner and content of the communication to him of that fact. The statutory powers and duties of the GMC restrict the scope of its liability in negligence…… ii) In this case the allegations made against the GMC consist of a positive act (the communication on 2 May 2018) and, separately, omissions (steps it is alleged the GMC ought to have done prior to the communication on 2 May 2018). A duty of care does not arise in respect of either for the reasons in (i) above. Nor could a duty of care arise in respect of the alleged omissions as the GMC cannot be argued to have assumed responsibility for Dr Suresh's wellbeing in circumstances where Dr Suresh relied on the same. iii) The pre-Robinson caselaw falls to be read in light of the developments explained in that and subsequent cases. I have examined and applied the general principles governing liability in negligence without needing to consider separately whether the existence of a duty is fair, just and reasonable, and within that context having recourse to policy considerations of the kind referred to in the older authorities. For the reasons given in (i) and (ii) above, in my view the application of general principles provides the answer. iv) Had it been necessary to give effect to policy considerations (as described by Lord Reed, or by affording such considerations a more centrally dominant role as Lord Hughes did in Robinson at [118]), I would have attached significant weight to those identified in cases such as Elguzouli-Daf and Brooks. Those considerations seem to me to apply just as much to a regulator in the position of the GMC as they do to the police and the CPS. Imposing a duty of care would in my judgment have a similarly chilling and diverting effect on the GMC's task of investigating fitness to practise in order to protect the public. Mr Hyam submitted that there was no evidence before the Court to support the proposition that recognising a duty of care would impede the work of the GMC, indeed he went so far to say that it would complement it. I do not accept that submission. As Lord Hughes observed in Robinson at [112] the Court can give effect to policy considerations where the consequences of defensive behaviour can scarcely be doubted; that in my view is the position here………… 218. Standing back, and on the assumption that the foreseeability issue will be determined in the Claimant's favour, I am satisfied that there is a clear and certain answer in the negative to the question of whether a duty of care was owed by the GMC to Dr Suresh in the circumstances. This conclusion is reached by the application of general principles of negligence liability to the case as pleaded, taken at its highest. Following Robinson and Poole, the correct approach is no longer uncertain or developing. The Particulars of Claim therefore do not disclose a legally recognisable claim in negligence against the Defendant. That claim must therefore be struck out. In the alternative, I conclude the Claimant has no real prospect of succeeding on the duty issue and there is no other compelling reason for this issue to be disposed of at trial. I would therefore have summarily dismissed the claim. i) Applying general principles in accordance with the framework identified in Robinson, in my judgment it would be inconsistent with the statutory scheme established under the Act and the Rules to hold that the GMC owes a duty of care to a doctor subject to investigation in relation to the timing, manner and content of the communication to him of that fact. The statutory powers and duties of the GMC restrict the scope of its liability in negligence…… ii) In this case the allegations made against the GMC consist of a positive act (the communication on 2 May 2018) and, separately, omissions (steps it is alleged the GMC ought to have done prior to the communication on 2 May 2018). A duty of care does not arise in respect of either for the reasons in (i) above. Nor could a duty of care arise in respect of the alleged omissions as the GMC cannot be argued to have assumed responsibility for Dr Suresh's wellbeing in circumstances where Dr Suresh relied on the same. iii) The pre-Robinson caselaw falls to be read in light of the developments explained in that and subsequent cases. I have examined and applied the general principles governing liability in negligence without needing to consider separately whether the existence of a duty is fair, just and reasonable, and within that context having recourse to policy considerations of the kind referred to in the older authorities. For the reasons given in (i) and (ii) above, in my view the application of general principles provides the answer. iv) Had it been necessary to give effect to policy considerations (as described by Lord Reed, or by affording such considerations a more centrally dominant role as Lord Hughes did in Robinson at [118]), I would have attached significant weight to those identified in cases such as Elguzouli-Daf and Brooks. Those considerations seem to me to apply just as much to a regulator in the position of the GMC as they do to the police and the CPS. Imposing a duty of care would in my judgment have a similarly chilling and diverting effect on the GMC's task of investigating fitness to practise in order to protect the public. Mr Hyam submitted that there was no evidence before the Court to support the proposition that recognising a duty of care would impede the work of the GMC, indeed he went so far to say that it would complement it. I do not accept that submission. As Lord Hughes observed in Robinson at [112] the Court can give effect to policy considerations where the consequences of defensive behaviour can scarcely be doubted; that in my view is the position here…………

Other issues

[40]At [225-228] the judge held that the case pleaded by the Claimants on foreseeability of psychiatric harm or suicide viewed as an issue in its own right would have been one for trial. However, since he had decided that there were no prospects of the claimants establishing a duty of care the negligence claim would nonetheless be struck out.[41]The judge went on to consider the Human Rights Act claim. He found that “assuming that the Claimants can make out all the matters that they plead, this cannot in my judgment establish knowledge or constructive knowledge on the part of the GMC that there was a real and imminent risk to the life of Dr Suresh” [263]. He held that he would have struck out or summarily dismissed the claim on that alternative basis. There is no appeal from that part of the judgment.

Grounds of appeal to this court

[42]The Claimants sought permission to appeal on four grounds, which can be summarised as follows:- i) Ground 1: The judge wrongly and uncritically applied a line of cases involving “defensive behaviour” and incorrectly found that a duty of care would be inconsistent with the GMC’s statutory functions. The judge ought to have held that there is nothing inconsistent with the GMC’s statutory scheme for there to be a duty of care owed by the GMC in carrying out a positive act, namely an investigation into a practitioner given the foreseeability of psychiatric harm. Ground 1 went on to argue that the GMC was not in an analogous situation to the public bodies involved in the cases concerning child protection, judicial/quasi-judicial functions or prosecutions. ii) Ground 2: The judge wrongly distinguished, rather than followed, Robinson. iii) Ground 3: The judge wrongly made a material finding inconsistent with the evidence in finding that the GMC did not create the source of danger and/or was not in a position to control the source of danger posed by its notification to Dr Suresh of 2 May 2018. iv) Ground 4: the judge failed to recognise that there were sufficiently compelling special circumstances to recognise a duty of care.[43]On 21 August 2025 Nicola Davies LJ granted permission to appeal on all four grounds. She made no reference to the prospects of success but wrote:- “There is a compelling reason to grant permission on all four grounds of appeal, namely to permit the Court of Appeal to clarify the law in relation to the existence and/or the scope of any private law duty owed by the GMC to medical practitioners under investigation in the discharge of its statutory investigative obligations.”[44]Grounds 1 and 2 substantially overlap and are at the heart of the case.

The statutory scheme

[45]Before considering the judge’s decision on the existence or otherwise of a duty of care, I should set out the essential aspects of the statutory scheme. I gratefully adopt the judge’s summary of the relevant provisions. “32. The GMC is a body corporate established by section 1(1) of the Medical Act 1983 ("the Act") having the functions assigned by that Act. Within the Act, the GMC is referred to as "the General Council". [The] "over-arching objective" of the GMC in exercising its functions is the protection of the public: see section 1(1A). By section 1(1B):
"The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives – (a) to protect, promote, and maintain the health, safety and well-being of the public, (b) to promote and maintain public confidence in the medical profession, and (c) to promote and maintain proper professional standards and conduct for members of that profession." 33. In addition to maintaining a register of medical practitioners (see section 2 and Parts II and III of the Act), the GMC is charged with investigating the fitness to practise of those on the register (see Part V of the Act) and an Investigation Committee is established for that purpose: see section 1(3). 34. Section 35C sets out the functions of the Investigation Committee. It applies where an allegation is made to the GMC against a registered practitioner "that his fitness to practise is impaired": s35C(1). Impairment can arise as a result of any of the matters set out at s35C(2). Amongst other things, that list includes criminal convictions, other misconduct, and deficient professional performance. 35. Guidance is published by the GMC concerning the meaning of fitness to practise. At the material time, this was in the form of The meaning of fitness to practise (2015) and a guide to the standards and behaviour expected of all doctors: Good Medical Practice (2013). A further guidance document, GMC Thresholds (2018), explained at §§15-6 that allegations of "sexual assault or indecency" were cases that were likely to meet the threshold to be referred to the GMC. 36. Returning to section 35C, once an allegation is made to the GMC, by section 35C(4) of the Act: "
The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Medical Practitioners Tribunal." ……….. Initial Consideration of an Allegation under the Rules 38. The GMC is empowered by the Act to make Rules concerning how investigations are conducted: see paragraph 1 of Schedule 4. It has done so in the form of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 ("the Rules"). The Rules cover investigation (Rules 4-12) and adjudication (Rules 17-42). 39. By Rule 4(1) an allegation is initially considered by the Registrar. Joanna Farrell, Assistant Director of Investigations at the GMC, explains in her witness statement that in practice this initial consideration is conducted by the Assistant Registrar with delegated authority. Nonetheless, I shall refer to the Registrar, adopting the language of the Rules. 40. Under Rule 4, the Registrar will consider whether the allegation falls within section 35C(2), viz whether it raises an issue of impaired fitness to practise. If it does not, then by Rule 4(2A) the Registrar must notify the maker of the allegation accordingly. The Registrar will also consider the age of the allegation……..Finally, the Registrar will consider whether the allegation is vexatious. If the Registrar considers the allegation should not proceed on that ground, s/he must notify the practitioner and maker of the allegation: Rule 4(3)(c). Subject to these rules, and the power to carry out appropriate prior investigations, by Rule 4(2) the Registrar must refer the matter for investigation:
"…where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8." 41. Operational guidance prepared by the GMC entitled Criminal Offences (2018) states that the Assistant Registrar: "…may promote the enquiry for investigation in the following circumstances: • Doctor is aware of the police investigation, the allegation is serious and the police investigation is progressing • The circumstances indicate that an interim order may be required • … • The offence in question meets the triage threshold • The police have disclosed information which enables the [Assistant Registrar] to understand the offence under investigation, including a brief summary of underlying circumstances (this will inform a subsequent IOT decision) • Police are content for the information provided by them to be used in our investigation and to be disclosed to the doctor."
Rule 7 Disclosure to the Doctor 42. Once an allegation is referred for consideration under Rule 8, a duty under Rule 7(1) is triggered. Rule 7 is headed "Investigation of allegations" and provides:
"(1) As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner – (a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired; (b) providing him with copies of any documents received by the General Council in support of the allegation; (c) inviting him to respond to the allegation with written representations within the period of 28 days from the date of the letter; and (d) informing him that representations received from him will be disclosed, where appropriate, to the maker of the allegation (if any) for comment." 43. In her statement, Ms Farrell suggested that in practice, at the start of the investigation, when complying with Rule 7(1)(b), the GMC would not be able to "fully particularise" the allegation and send all the evidence gathered during the investigation, and hence full disclosure occurs in practice at the end of the fitness to practice investigation process. Be that as it may, the Rule is drafted in mandatory terms and requires the GMC, as soon as is reasonably practicable, to write to the practitioner with the matters set out in (a) to (d) as far as they are known at that time, even if they fall to be supplemented at a later date. Ms Farrell confirmed that it is the GMC's policy to disclose to the doctor the fact of the investigation and information about the nature of the complaint or referral as soon as reasonably practicable following the decision to commence an investigation. She referred to the GMC's guidance Initial doctor disclosure (2018) which supported this: "
When allegations pass the Rule 4(2) threshold for consideration under Rule 8, we must inform the doctor concerned…we must carry out disclosure to the doctor under Rule 7(1) of our fitness to practise rules. We also carry out this process at final disclosure". 44. The same guidance has a section at 2C headed "Delaying disclosure". After referring to delay in order to avoid prejudice to an ongoing criminal or quasi-criminal investigation, the guidance states:
"Disclosure may be delayed if the doctor has health issues requiring us to hold off on our correspondence, or deliver through a nominated contact."
Investigation and Rule 8 Consideration 45. By Rule 7(2):
"The Registrar shall carry out any investigations, whether or not any have been carried out under rule 4(4), as in his opinion are appropriate to the consideration of the allegation under rule 8." 46. Rule 8(1) then requires an allegation referred by the Registrar under rule 4(2) to be considered by the Case Examiners. The Case Examiners, if unanimous, may decide the allegations should proceed no further, or to issue a warning, or to refer the allegation to the Committee, or to refer the allegation to a Medical Practitioners Tribunal: see Rule 8(2). They may also recommend the practitioner be invited to comply with undertaking: Rule 8(3). If they are not unanimous, Rule 8(5) provides for a referral to the Committee. Obtaining information about, and disclosure to, Employers etc 47. Section 35A(2) of the Act requires the GMC to obtain details from a practitioner subject to investigation as follows: "
As soon as is reasonably practicable after the relevant date, the General Council shall require, from a practitioner whose fitness to practise is being investigated, details of any person – (a) by whom the practitioner is employed to provide services in, or in relation to, any area of medicine; or (b) with whom he has an arrangement to do so." 48. The "relevant date" is determined by reference to the Rules: see section 35A(3). Rule 13 provides that it is the earliest of a number of events. Materially these include:
"(a) the decision of the Registrar to carry out investigations under Rule 7(2); (b) the referral of an allegation to the MPTS for them to arrange for it to be considered by an Interim Orders Tribunal; (c) the referral of an allegation for consideration by the Case Examiners under rule 8;" 49. Ms Farrell explains that this duty is discharged by the GMC requiring a doctor to complete a 'work details form' which is enclosed with the initial disclosure letter. 50. The GMC is also under a duty, pursuant to section 35B(1) of the Act, to notify any person who employs the practitioner to provide medical services, or any person with whom the practitioner has an arrangement to do so, of the investigation "as soon as is reasonably practicable after the relevant date"
. Ms Farrell explains in her statement that this will include the Responsible Officer of the doctor, who in the context of an NHS Trust, is usually a senior doctor (such as the Medical Director): see the Medical Profession (Responsible Officers) Regulations 2010. The GMC's guidance Employer disclosure (2018) provides that disclosure to a Responsible Officer may take place "once we are satisfied that the doctor has had sufficient time to receive the disclosure, typically 7 days". Interim Orders 51. By section 1(3)(i) of the Act, the GMC must establish one or more Interim Orders Tribunals. Rule 6 provides as follows:
"If, at any stage, the Registrar is of the opinion that an Interim Orders Tribunal should consider making an interim order in relation to a practitioner, he shall refer the allegation to the MPTS for them to arrange for it to be considered by such a Tribunal accordingly." 52. Rule 8(6) also allows the Case Examiners, where they are of the opinion that an Interim Orders Tribunal should consider making an interim order, to direct the Registrar accordingly. 53. The GMC had a number of operational guidance documents concerning when a referral should be made, including: Interim Orders Tribunal: Referral Criteria (2015), Guidance on Referral to an Interim Orders Tribunal (Case Examiner Guidance) (2016), and Interim Orders: Operational Guidance (2018). The first of those documents summarises the position as follows: "
Cases should be referred to the Interim Orders Tribunal (IOT) where the doctor faces allegations of such a nature that it may be necessary for the protection of members of the public, or otherwise be in the public interest or in the interest of the doctor, for the doctor's registration to be restricted whilst the allegations are resolved." Amongst the example allegations "illustrative of cases which, depending on all the circumstances may require referral to the IOT" are "indecent assaults" (see §4, §7). The guidance states the point at which the referral would take place is flexible and depends on individual circumstances (§10). 54. Where a case is to be considered by an Interim Orders Tribunal, Rule 26 of the Rules provides:
"Prior to the initial or any review hearing relating to an interim order, and within such time before the hearing as is reasonable in the circumstances of the case – (a) the Registrar shall - (i) set out the reasons why it is necessary to make or review an interim order, (ii) provide a copy of any written evidence obtained by the General Council which is relevant to the question of whether or not an interim order should be made or reviewed, and (iii) in relation to a review hearing, provide a copy of the order to be reviewed; and (b) the MPTS shall serve a notice of hearing on the practitioner [specifying matters set out at (i) to (vi) including the date, time and venue of the hearing]." 55. At a hearing the Interim Orders Tribunal applies the test set out in section 41A of the Act, namely whether: "it is necessary for the protection of members of the public, or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions". 56. The Tribunal may make no order, or may make an order (for up to 18 months) imposing interim conditions or suspending the doctor's registration on an interim basis. ……..[By] section 41A(8): "
No order under subsection (1) or (3)(b) to (d) above shall be made by a Tribunal in respect of any person unless he has been afforded an opportunity of appearing before the Tribunal and being heard on the question of whether such an order should be made in his case." "The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Medical Practitioners Tribunal." Initial Consideration of an Allegation under the Rules "…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." "…may promote the enquiry for investigation in the following circumstances: • Doctor is aware of the police investigation, the allegation is serious and the police investigation is progressing • The circumstances indicate that an interim order may be required • … • The offence in question meets the triage threshold • The police have disclosed information which enables the [Assistant Registrar] to understand the offence under investigation, including a brief summary of underlying circumstances (this will inform a subsequent IOT decision) • Police are content for the information provided by them to be used in our investigation and to be disclosed to the doctor." "(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." "When allegations pass the Rule 4(2) threshold for consideration under Rule 8, we must inform the doctor concerned…we must carry out disclosure to the doctor under Rule 7(1) of our fitness to practise rules. We also carry out this process at final disclosure". "Disclosure may be delayed if the doctor has health issues requiring us to hold off on our correspondence, or deliver through a nominated contact." "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." Obtaining information about, and disclosure to, Employers etc "As soon as is reasonably practicable after the relevant date, the General Council shall require, from a practitioner whose fitness to practise is being investigated, details of any person – (a) by whom the practitioner is employed to provide services in, or in relation to, any area of medicine; or (b) with whom he has an arrangement to do so." "(a) the decision of the Registrar to carry out investigations under Rule 7(2); (b) the referral of an allegation to the MPTS for them to arrange for it to be considered by an Interim Orders Tribunal; (c) the referral of an allegation for consideration by the Case Examiners under rule 8;" Interim Orders "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." "Cases should be referred to the Interim Orders Tribunal (IOT) where the doctor faces allegations of such a nature that it may be necessary for the protection of members of the public, or otherwise be in the public interest or in the interest of the doctor, for the doctor's registration to be restricted whilst the allegations are resolved." "Prior to the initial or any review hearing relating to an interim order, and within such time before the hearing as is reasonable in the circumstances of the case – (a) the Registrar shall - (i) set out the reasons why it is necessary to make or review an interim order, (ii) provide a copy of any written evidence obtained by the General Council which is relevant to the question of whether or not an interim order should be made or reviewed, and (iii) in relation to a review hearing, provide a copy of the order to be reviewed; and (b) the MPTS shall serve a notice of hearing on the practitioner [specifying matters set out at (i) to (vi) including the date, time and venue of the hearing]." "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". "No order under subsection (1) or (3)(b) to (d) above shall be made by a Tribunal in respect of any person unless he has been afforded an opportunity of appearing before the Tribunal and being heard on the question of whether such an order should be made in his case." Discussion Strike out

Discussion

[46]In Barrett v Enfield London Borough Council [2001] 2 AC 550 Lord Browne-Wilkinson said:- "…in an area of the law which is uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out."[47]It should be noted, however, that the fact that a claim lies in an area of developing law is not an absolute bar to a strike-out (see the discussion in Lunak Heavy Industries (UK) Limited and another v Tyburn Film Productions Ltd [2025] EWCA Civ 1643 at [23] to [26]).[48]On the other hand, as the Supreme Court held in HXA v Surrey, where the legal principles governing an area of law have become settled, it can be right to strike out. There, the Court held the relevant principles were settled by Poole. Where pleadings "do not disclose circumstances giving rise to a duty of care, the waste of costs inherent in an unnecessary full trial on breach and causation can be sensibly avoided."[49]Similarly, on applications for summary judgment, there is what the judge rightly described as a helpful summary of the applicable principles set out by Lewison J at [15] in Easyair Ltd v Opal TelecomLtd [2009] EWHC 339 (Ch), including:- “i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91; ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];…………….. vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”[50]For the reasons which will follow in my discussion of the substantive issues of law, in particular as to the existence or otherwise of a duty of care in this case, I do not consider that this can be described as an uncertain and developing area of the law. On the contrary, it is an area where the governing legal principles have become settled. Moreover, counsel for the Appellants did not point to any unascertained facts which could have affected the determination of the question of a duty of care. The case was argued before us on the basis that if (but only if) it was clear that no duty of care in law was owed to Dr Suresh by the GMC, the judge’s decision should be upheld; and if not, it should be reversed.

Duty of care

[51]The GMC’s skeleton argument at [24] states:- “The Appellants have failed to identify a single case at any level in which an English court has found that a public authority or regulator owes a duty of care to a person under investigation in circumstances analogous to the present.”[52]For the Appellants Mr Hyam accepted that there has to date been no such case. However, he submits, the cases involving other public bodies or regulators are not analogous (Ground 1) and in any event, the authorities prior to Robinson must now be reconsidered in the light of Robinson itself (Ground 2). I will first, therefore, refer to the principal pre-Robinson authorities on which the GMC rely.

Leading cases on duty of care pre-Robinson

[53]The absence of a duty of care owed by police or prosecutors to persons under investigation was firmly established prior to Robinson by a series of decisions at the highest level. It is not necessary to go back in time further than Calveley v Chief Constable of the Merseyside Police & Others [1989] AC 1228. The issue there was whether police officers against whom disciplinary proceedings had been brought under the Police (Discipline) Regulations 1977 were owed a common law duty of care by the investigating officers who were alleged to have failed to carry out their investigations properly or expeditiously. Lord Bridge of Harwich described the submission that a police officer investigating any suspected offence (whether by a civilian or by a member of a police force) owed the suspect a duty of care at common law was a “startling proposition”, which “founders on the rocks of elementary principle”. He said at 1238F-1239A:- “Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation. Finally, all other considerations apart, it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect. If no duty of care is owed by a police officer investigating a suspected crime to a civilian suspect it is difficult to see any conceivable reason why a police officer who is subject to investigation under the Regulations of 1977 should be in any better position. Junior counsel for the appellants, following, put the case in negligence on a very much narrower basis. He submitted that in the case of a police officer subject to investigation a specific duty of care is owed to him to avoid any unnecessary delay in the investigation precisely because the officer is, or is liable to be, suspended from duty until the investigation is concluded. The short answer to this submission is that suspension from duty is not in itself and does not involve any foreseeable injury of a kind capable of sustaining a cause of action in negligence.”[54]In Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335, two men who had been arrested, charged and remanded in custody on charges of serious offences alleged that the Crown Prosecution Service had been negligent by failing to act with reasonable diligence in obtaining, processing and communicating the results of forensic evidence which showed them to be innocent. Steyn LJ held that there were policy factors which pointed away from the recognition of a duty of care. He said that such a duty “would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime”. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence.[55]Elguzouli-Daf was approved by the Supreme Court in SXH v Crown Prosecution Service [2017] 1 WLR 1401. Lord Toulson JSC said at [38]:- "The duty of the CPS is to the public, not to the victim or to the suspect, who have separate interests. To recognise a duty of care towards victims or suspects or both, would put the CPS in positions of potential conflict, and would also open the door to collateral interlocutory civil proceedings and trials, which would not be conducive to the best operation of the criminal justice system. Similar considerations are relevant when considering the applicability of article 8 in the context of a decision to prosecute…"[56]Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 concerned an action brought against the police following the racist killing of Stephen Lawrence. Duwayne Brooks was a friend of Stephen who was present at, and a surviving victim of, the attack. As Lord Reed noted in Robinson [60], Mr Brooks' claim in negligence was that he had suffered psychiatric illness in consequence of his insensitive treatment by officers.[57]Lord Steyn, after referring to Hill v Chief Constable of West Yorkshire [1989] AC 53, said at [30]:- “It is, of course, desirable that police officers should treat victims and witnesses properly and with respect… But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence… A retreat from the principle in Hill's case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police's ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill's case, be bound to lead to an unduly defensive approach in combatting crime."[58]Lord Rodger of Earlsferry said at [38]:- “The decisions in Elguzouli-Daf … and Kumar v Commissioner of the Police of the Metropolis … show, correctly in my view, that the Crown Prosecution Service and the police owe no duty of care to a defendant against whom they institute and maintain proceedings. The reasons are general, but none the less persuasive. The fact that no such legal duty of care exists does not mean, however, that a prosecutor or police officer should be anything other than scrupulous in considering the strengths and weaknesses of the case against the defendant. On the contrary, at every stage they will be conscious that, if their decision is wrong, the defendant will be exposed to the risk of suffering substantial harm. In that very real sense, the defendant's interests are always before them. Prosecutors and police officers are therefore under an ethical and professional duty to act with due care. Nevertheless, this duty does not translate into a legal duty of care to the defendant. A fortiori, for the reasons given by Lord Steyn, police officers investigating crime do not owe witnesses the supposed legal duties of care alleged by the respondent. But, as a matter of professional ethics, officers can be expected to treat witnesses with appropriate courtesy and consideration, and may be open to disciplinary proceedings if they do not."[59]It is thus clear beyond argument that, immediately prior to the Robinson case, police and prosecutors owed no duty of care to suspects, witnesses or victims when investigating or prosecuting criminal offences, or conducting internal investigations in a disciplinary context.

Robinson

[60]The Appellants place great reliance on the decision of the Supreme Court in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] AC 736, which Mr Hyam argues involved a reconsideration of previous authorities on a duty of care. Two police officers were attempting to arrest a suspected drug dealer on a weekday afternoon in a shopping street in the centre of Huddersfield. A struggle took place during which the three men knocked into the claimant, a relatively frail lady aged 76. The claimant suffered injuries and brought a claim for damages against the Chief Constable on the grounds of negligence by the two police officers. The trial judge held that the police officers had acted negligently since there was a foreseeable risk that passers-by such as the claimant would be injured and they had failed to have regard to the safety of members of the public in the vicinity, but dismissed the claim on the grounds that the police had immunity against claims in negligence. The Court of Appeal dismissed the claim, holding that no duty of care was owed by the police and that even if the officers had owed the claimant such a duty, on the facts of the case they had not acted in breach of it.[61]The claimant succeeded on appeal to the Supreme Court. It is important to note that the case was hard fought both on the facts and on the law. The trial judge had found as a fact that the police had failed to take reasonable care for the safety of the claimant. If this court had been justified in its decision overturning that finding of fact then the question of law would not have arisen. But the Supreme Court (with a good deal of doubt on the part of Lord Hughes JSC) held that the finding of fact was one which the trial judge had been entitled to reach. The issue of law was then whether the police had owed Mrs Robinson a duty of care at all.[62]Plainly, the facts of the case were concerned with a positive act by the police and not an omission. As Lord Reed pointed out at [33], “public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence, unless the law provides otherwise”.[63]There is a reasonably foreseeable risk of injury if an arrest of a suspect is attempted on a busy shopping street at a time when pedestrians, especially physically vulnerable ones such as the claimant, might be injured in the course of the suspect attempting to escape. We all owe duties to passers-by in the High Street to take such care as is reasonable in the circumstances not to knock them over and cause them injury. The police officers had owed that duty towards pedestrians, including the claimant, in the immediate vicinity when the arrest had been attempted. Given the finding of the trial judge that the police had not exercised reasonable care the claimant was entitled to damages. She “was injured as a result of being exposed to the very danger from which the police had a duty of care to protect her” (per Lord Reed at [80]).[64]Calveley, Elguzouli-Daf, SXH and Brooks were all considered in detail by Lord Reed. None of them had concerned claims for direct physical injury, and the Supreme Court rejected the suggestion that they had conferred on the police a blanket immunity from suit for anything done in the course of investigating or preventing crime. In Calveley, for example,the claim was for economic loss: Lord Reed said that Lord Bridge had not been addressing the question of whether the police may owe a duty of care to avoid causing reasonably foreseeable physical injury in the course of their operations. However, Calveley was cited with approval in Robinson as regards the rejection of the attempt to establish “a novel type of liability relating to the manner in which an investigation was conducted”. Brooks was held to have been correctly decided on the basis that “on ordinary principles behaviour which is merely insensitive is not normally actionable, even if it results in a psychiatric illness”.[65]I do not consider that Robinson involved reconsideration of the principle that the police and prosecutors do not owe a duty of care to suspects, witnesses or victims in the investigation and prosecution of crime, or in internal disciplinary investigations.

The relevance of the statutory context

[66]In Jain v Trent Strategic Health Authority [2009] 1 AC 853 aclaim in negligence was brought by Mr and Mrs Jain against the regulator of the care home which they ran. The authority had statutory powers (under section 30 of the Registered Homes Act 1984) to apply for an order cancelling the Jains' registration in respect of the home. The authority exercised that power on the basis of inaccurate information and insinuations and applied to the magistrates' court for an order, without giving any notice to the Jains. The order was granted and the home closed. Whilst the order was ultimately overturned on appeal (accompanied by strong criticism of the authority), the appeal was not heard until four months later, by which time the Jains' business had been ruined. The issue for the House of Lords was whether the authority owed the Jains a duty of care in negligence when preparing and making the section 30 application.[67]In his leading speech, Lord Scott of Foscote held at [20]:
"In making the application the authority is exercising a statutory power. The purpose of the power is the protection of the residents in the home in question. It might be fair and reasonable to conclude that the authority did owe a common law duty of care to the residents of a nursing home or a care home if conditions at the home warranting the exercise of the authority's statutory powers had come to the authority's attention but nothing had been done. But to conclude that an authority exercising, or deciding whether to exercise, its statutory powers owed a duty of care also to the proprietors of the home seems to me much more difficult."
[68]After a review of several earlier decisions, Lord Scott had said at [28]:- "This line of authority demonstrates, in my opinion, that where action is taken by a state authority under statutory powers designed for the benefit or protection of a particular class of persons, a tortious duty of care will not be held to be owed by the state authority to others whose interests may be adversely affected by an exercise of the statutory power. The reason is that the imposition of such a duty would or might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of the statutory purpose".[69]In the present case the judge said at [159] that:- “Whilst Jain was a case in which the claimants sought financial losses incurred as a result of the closure of the home, it is quite clear that the reasoning was intended to apply equally to cases of foreseeable personal injury, such as psychiatric loss; indeed that was made express by Lord Scott at [35]. Further, contrary to Mr Hyam's submission, I do not regard the reasoning in Jain as confined to cases where the public body in question instigates judicial or quasi-judicial proceedings. That would ignore the first line of authority considered by Lord Scott.”[70]Mr Hyam distinguished Jain on the basis that the case involved a without notice application to a magistrate for cancellation of the care home’s registration. In the present case, by contrast, there were “no judicial proceedings or quasi-judicial proceedings, but an administrative decision to commence an investigation pursuant to a statutory duty to investigate following referral by the police”. This seems to me, with respect, a distinction without a difference. The GMC were acting under a duty imposed by statute and were setting in train an application to the IOT, a tribunal established by statute, which had the power to suspend Dr Suresh’s registration.[71]Mr Hyam cited paragraph 41 of the judgment of Lord Reed JSC in Robinson, in which he said:- “...concerns about public policy cannot in themselves override a liability which would arise at common law for a positive act carried out in the course of performing a statutory function: the true question is whether, properly construed, the statute excludes the liability which would otherwise arise: see Gorringe’s case [2004] 1 WLR 1057, para 38, per Lord Hoffmann.”[72]I do not consider that this paragraph mandates courts, in every case where a body with statutory duties is sued for negligence, to carry out a two stage process beginning with consideration of what the position would have been at common law. The reference to paragraph 38 of Lord Hoffmann’s speech in Gorringe makes that clear. Lord Hoffmann said that where public authorities have actually done acts which give rise to a common law duty of care “the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negate the existence of such a duty” [emphasis added]. This is not to say that one is required to begin by ignoring the statutory context.[73]Before considering the important post-Robinson case of Poole I should say at once that it seems wholly artificial, as an approach to considering whether the GMC owes a duty of care to registrants, to start by considering the position at common law before going on to ask whether the statute excludes the liability which would otherwise arise. Robinson was a claim against the police. Constables have existed for centuries. Police officers in modern times have powers and duties, some of which arise at common law and some under statute. The GMC, by contrast, is entirely a creature of statute: it was established by the Medical Act 1858 and is now governed by the Medical Act 1983, as amended from time to time. Its powers and duties are set out in the statute. In particular, Parliament has stated in section 1(1A) of the Act that its overarching duty is the protection of the public. I do not see what assistance is to be obtained by asking the question of what duty of care at common law might be owed by a hypothetical regulator which had not been established by statute and did not have that overarching statutory duty.[74]In Poole Lord Reed referred at [31] to the observation of Lord Hoffmann in Stovin v Wise [1996] AC 923 that “in the case of positive acts... the liability of a public authority in tort is in principle the same as that of a private person but may be restricted by its statutory power [emphasis in original]”. The relevance of the statutory context was also considered by the Supreme Court in Poole when it examined the earlier case of D v East Berkshire Community Health NHS Trust [2004] QB 558 (Court of Appeal) and [2005] 2 AC 373 (House of Lords). Claims in that case had been brought by parents who had been accused, falsely as it turned out, of abusing or injuring their children. The House of Lords held that a common law duty of care might be owed to the children, but not to the parents. Lord Reed said in Poole:- "Although a duty of care might be owed to the child, the court considered that the position of the parents was different. In view of the potential conflict between the best interests of the child and the interests of the parents, there were in the court's view cogent reasons of public policy for concluding that, where child care decisions were being taken, no common law duty of care should be owed to the parents. Another way of expressing the point would have been to say that the imposition of a common law duty of care towards the parents would be inconsistent with the statutory framework, since it would interfere with the performance by the authority of its statutory powers and duties in the manner intended by Parliament." (Emphasis added)

A narrower duty?

[75]Faced with this formidable line of authority Mr Hyam realistically did not seek to argue that the GMC was under a general duty of care towards registrants against whom an allegation has been made which calls into question their fitness to practise. He sought instead to argue for a narrower duty confined to taking reasonable care for the welfare of the registrant in how the bad news is broken; the terms in which it is notified; whether enquiries should be made in every case (of the Responsible Officer or otherwise) as to whether the doctor is particularly vulnerable and in need of counselling.[76]In oral argument Mr Hyam sought to derive assistance from the decision of this court in Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421. A member of the public assisted the police by acting as “the appropriate adult” when Frederick West was being interviewed on suspicion of committing numerous murders. The police had formed the view that West might be suffering from a mental disorder such that under Code C under the Police and Criminal Evidence Act 1984 an interview had to be attended by an appropriate adult. Ms Leach voluntarily sat in on a number of interviews, accompanied the suspect on location visits and on occasions sat alone with him in a cell. The horrific nature of the crimes of which in due course West was convicted was such that the police had made arrangements for police officers involved in the case to receive counselling and support. No such arrangements were made for or offered to Ms Leach until after West had committed suicide in January 1995. Ms Leach brought a claim in negligence, alleging that she had suffered post-traumatic stress, psychological injury and a stroke by reason of her involvement in the case. At first instance the claim was struck out.[77]The Court of Appeal held (by a majority) that there were strong policy reasons why the law should not impose on the police a general duty towards a person acting as an appropriate adult to take care to protect him or her from mental or psychological harm. They held, however, that there was at least a triable issue raised by the failure of the police to provide counselling to a member of the public whom they had asked to assist them in this way.[78]Leach does not appear to have been considered in any of the subsequent appellate cases cited to us. It was an unusual case in that Ms Leach was neither a suspect nor a victim and had assisted the police at their request; unusual too, in that the police had provided counselling to their own officers who had had dealings with West, but did not give the same support to Ms Leach. In those circumstances it is unsurprising that this court held that the issue of whether the failure to provide counselling breached any duty of care should go to trial. But this cannot assist the Appellants to overcome the combined effect of Jain, Calveley, Brooks, SXH and the other authorities referred to above. Calveley is particularly significant: it will be recalled that the Appellants were arguing for a narrow duty of care in the conduct of disciplinary proceedings (in particular, to avoid unnecessary delay in investigations), but in the passage cited above Lord Bridge rejected the argument that such a duty of care existed.[79]Like the judge, I do not consider that it is arguable that any such narrower duty exists in law. Parliament has stated in section 1(1A) of the 1983 Act that the overarching objective of the GMC is the protection of the public. The GMC must act in accordance with the overarching objective when complying with its statutory duty to investigate complaints. The judge was right, consistently with the authorities before and after Robinson, to find that the recognition of a duty of care of a doctor subject to investigation would risk creating conflicts where the duty to investigate in accordance with the overarching objective would point one way and the interests of the doctor would point the other way.[80]The final two grounds of appeal can be dealt with quite shortly.

Creating source of danger

[81]Ms Victoria Webb addressed us on Ground 3. The Appellants argue that the judge was wrong in law in finding that the GMC did not create a “source of danger” or was not in a position to control a source of danger to Dr Suresh. They argued that the GMC knew or ought to have known of the increased risk of suicide to any registrant under investigation (the statistics apparently showing that anaesthetists may be at particular risk), following a police referral where the underlying accusation was a sexual assault on a child. Reasonably practicable steps could have been taken, in particular by involving Dr Suresh’s Responsible Officer in the process of informing Dr Suresh of what was to happen to enable support to be put into place. The Guidance, put in place by the GMC itself, recognises that investigation is likely to cause stress and upset.[82]Ms Webb submitted that the GMC had a discretion to take steps to minimise the danger but failed to take any such steps. She focussed on the first communication (or at least the first substantive communication, on 2 May 2018) from the GMC as being the point at which the danger should have been minimised.[83]The GMC argued that what was being described as the “source of the danger” was the simple fact of the investigation into Dr Suresh’s fitness to practise and the notification to him of that fact. The GMC had no control over those steps in view of its statutory duty to investigate the allegation and its statutory duty to send to the registrant notification of the investigation and the forthcoming hearing before the IOT. The alleged breaches of duty in the Particulars of Claim concern omissions to take steps prior to the critical email of 2 May 2018; and such omissions are not actionable.[84]Ms Webb submitted that it was right to focus on the letter of 2 May 2018 because it was “like a bolt out of the blue”. The doctor has the shock of being notified of the police investigation and suspension from the Trust.[85]Mr Mant KC, for the Respondent, asked the pertinent rhetorical question:
“If there is a duty in respect of the first communication, what proper principled basis can there be for not imposing the same duty in respect of other communications?”
. He also asked how the GMC was supposed to proceed if they contacted the Responsible Officer and the response came back that in the interests of the doctor’s health they should delay taking further steps for a year or that the doctor should undergo a course with a psychologist to prepare themselves for shock or that they should not be informed at all.[86]I accept the argument that the GMC did not “create a source of danger” in the way that the Home Office did in the celebrated Dorset Yacht case. In sending the email of 2 May 2018 it was simply doing something which the statute and rules obliged it to do. The tone of the letter is not in my view arguably inappropriate or insensitive. Even if it had been, to impose a duty would be inconsistent with the decision in Brooks.

Ground 4: Sufficiently compelling special circumstances to recognise a duty of care?

[87]Mr Hyam put this forward as a brief concluding part of his submissions. (Mr Forde argued that this ground was not advanced before the judge.) The suggestion is that the pre-existing legal proximity between Dr Suresh and the regulator; the foreseeability of harm given the serious allegation of sexual assault against a child and the very early stage of the case constituted special circumstances. The argument is, with respect, without substance. The fact of registration with the GMC does not establish legal proximity, for the reasons set out under Grounds 1 and 2 above. The GMC was not the employer and did not have legal obligations to take steps to promote the registrant’s welfare. The point about the seriousness of the allegations is a two edged sword: where the allegation is of conduct which if repeated might involve a significant risk to patients, there is all the more need for the GMC to bring the case before the IOT without delay.

Conclusion

[88]Where a medical practitioner is accused of misconduct such as a sexual assault on a child patient, the accusation often leads to the involvement of the police, and of local authority social services if the doctor has children; to precautionary suspension by the employer; to a referral to the GMC and by them to the IOT; and to a suspension from practice by the IOT for what may be a considerable period until the matter is finally resolved. The process can seem lengthy and complex, and in some cases it may cause great distress. The same can occur when an allegation is made of a criminal offence which is investigated by the police, prosecuted by the CPS and may eventually be found to be without substance. Nevertheless, it is clear that the law does not impose a duty of care on investigators or statutory regulators in those circumstances.[89]This is a very sad case, but I consider that the judge was clearly right to strike out the claims.[90]I would dismiss this appeal.[91]I agree.

Baroness Carr of Walton-on-the-Hill, Lady Chief Justice of England and Wales:

[92]I also agree.