Rising rates of suicide among regulated professionals who have been the subjects of complaints and investigations have become a concern for regulators across the world. The recent UK case of Suresh & Ors v General Medical Council serves to remind regulators of the significant impact that complaints and investigations can have on a registrant’s mental health and the importance of compassionate regulation to mitigate these effects.
In this case, a physician died by suicide after the physician regulator initiated an investigation into allegations of sexual abuse against him. The physician’s family brought legal action against the regulator arguing that the regulator had a duty of care to physicians who might be at risk of psychiatric injury or suicide upon being notified of allegations against them.
The UK court ultimately determined that the regulator does not have this type of duty of care towards its registrants. The reasoning behind the decision was rooted in the regulator’s statutory mandate to protect the public. The court found that a duty of care to an individual registrant would interfere with the regulator’s duty to protect the public and that its statutory function did not involve the regulator undertaking a responsibility to an individual registrant. Additionally, from a public policy perspective, this type of duty would have a chilling effect on the regulator’s ability to carry out its functions.
For similar reasons, Canadian courts have also found that a regulator does not have a private law duty to registrants while acting in its statutory role as a professional regulatory body (see e.g. Nesbitt v College of Physicians and Surgeons of British Columbia).
The court in Suresh cautioned that the decision should not be interpreted as saying that the regulator should not consider the position of the registrant. The UK physician regulator is aware of these concerns and has been actively monitoring and reporting on self-harm by physicians under investigation, and has taken steps to address the concerns.
Although regulators might not have a legal duty of care towards registrants, this case is a reminder to regulators of the need to employ compassionate strategies when carrying out their regulatory responsibilities. Prioritizing compassion, including through sensitive and clear communications with registrants (and complainants) and the timely disposition of complaints and investigations, will allow regulators to discharge their mandates more effectively. Regulators should seek to strike a balance between protecting the public and being respectful, kind, and fair to registrants to minimize the negative effects of complaints and investigations on a registrant’s mental health. As noted by Dr. Zubin Austin, regulating in this way can result in better regulation and should not be viewed as an either/or when it comes to protecting the public.
