The Article 2 Operational Duty and Regulatory Investigations
29 January 2026
In Suresh & Ors v General Medical Council [2025] EWHC 804 (KB), the High Court considered claims brought by the family of a doctor who died by suicide after receiving a letter from the General Medical Council (GMC). That letter stated that his Fitness to Practise was under investigation for allegedly sexually assaulting a 15-year-old patient.
It is important to emphasise that Marcus Pilgerstorfer KC, sitting as a Deputy High Court Judge, recorded at the outset of his judgment that identification evidence provided to the police by the complainant was inconsistent with the perpetrator being Dr Suresh. The Crown Prosecution Service decided that there was insufficient evidence to prosecute. Dr Suresh has never been found to have committed the offence alleged [4].
Dr Suresh’s family brought claims against the GMC in negligence and under the Human Rights Act 1998. The Defendant successfully applied to have both claims struck out and/or summarily dismissed. This article considers the court’s analysis of the human rights claim.
Human Rights Claim
The Claimants argued (i) that the Article 2 operational duty was triggered as a result of the Defendant’s notification of their investigation into Dr Suresh’s conduct and (ii) the Defendant knew or ought to have known that there was a risk to Dr Suresh’s life. The Defendant then was required to take steps to avoid Dr Suresh’s death [13].
On the contrary, the Defendant argued that the operational duty was inapplicable to regulatory investigations. In any event, even if the duty did arise, the Defendant did not actually or constructively know, of a real and immediate risk to life [17(iii)].
Does Article 2 Apply to Regulatory Investigations?
The court held that actual or constructive knowledge of the existence of a real and immediate risk to life alone is insufficient for the Article 2 operational duty to crystallise. It is only in “well defined circumstances” that the operational duty will arise (Rabone v Pennine Care NHS Trust [2012] 2 AC 72 at [12]) [236]. The judge considered a range of such well-defined circumstances where the duty had previously arisen, such as prisoners, those in immigration detention, or those receiving psychiatric treatment in hospital [238]-[241].
To establish whether the duty existed in the regulatory context, the following factors were relevant, applying R (Gardner) v Secretary of State for Health and Social Care [2022] EWHC 967 (Admin) and Maguire v His Majesty’s Senior Coroner for Blackpool and Fylde [2025] AC 63 [242]-[245]:
- Did the Defendant assume responsibility for the Claimant?
- Was the Defendant exercising control over the Claimant?
- Was the nature of the risk posed to the Claimant exceptional?
- Was the Claimant sufficiently vulnerable?
Applying these factors to regulatory investigations, the judge held the answer to each question was “no.” In relation to assumption of responsibility, the judge held that the GMC did not assume responsibility for the doctors it investigates. Equally, merely sending a letter informing Dr Suresh that he was under investigation was “clearly insufficient” to amount to control [248(i)]. The risk was also not exceptional. Risks arising in the course of GMC investigations did not fall into the category of a dangerous situation posed by violent, unlawful acts of others or man-made or natural hazards (see Stoyanovi v Bulgaria (App No 42980/04, 9 November 2010, unreported) [248(ii)]. In relation to vulnerability, whilst the judge accepted that doctors under regulatory investigation are vulnerable, he held that they are not sufficiently vulnerable to trigger the duty. Their level of vulnerability was akin to patients in hospital. Previous case law had established that patients in hospital were not sufficiently vulnerable for the duty to arise in the regular course of things [248(iii)].
Considering the factors individually and cumulatively, the operational duty did not crystallise in this case [249].
Real and Immediate Risk
Although the judge held that the duty did not arise on the facts of Suresh, he nevertheless went on to consider the applicable test had the duty crystallised: whether the Defendant actually or constructively knew of a “real and immediate” risk to Dr Suresh’s life (see Osman v UK (1998) 29 EHRR 245)).
The Claimants focused on the Defendant’s duty of enquiry. In short, had the Defendant contacted the NHS Trust where Dr Suresh worked, they may have identified Dr Suresh as being at immediate risk of suicide. That was a matter for trial not to be determined at a strike out application. The Claimants also relied on a letter written by the GMC’s Chief Executive and Registrar which stated: “We absolutely acknowledge the real and immediate risk to life for any doctor subject to investigation and we are committed to continuing to improve the way we handle fitness to practise cases.”[258].
Conversely, the Defendant submitted that the Claimants’ reliance on generic factors of those in Dr Suresh’s position were insufficient to satisfy the test. On the evidence available, not even Dr Suresh’s Trust would have had sufficient knowledge to engage the Osman test.
The judge outlined the factors previously considered relevant by the Strasbourg court in Fernandes de Oliviera v Portugal (2019) 69 EHRR 8 [255]:
- A history of mental health problems.
- The gravity of the mental condition.
- Previous attempts to commit suicide or self-harm.
- Suicidal thoughts or threats.
- Signs of physical or mental distress.
He also rehearsed the ECtHR’s conclusion in Fernandes de Oliviera that an underlying risk of suicide is not in itself sufficient to give rise to a real or immediate risk to life [256].
In light of that analysis, the judge considered that the Claimant’s submissions in respect of the generic factors were insufficient. In respect of the letter, it was not using the language of “real and immediate risk” in a technical way. Particularly relevant was that the letter referred to the risk arising “for any doctor” undergoing GMC proceedings [262].
Further, the particular findings that may have been established at trial in respect of the Defendant’s duty of enquiry were not sufficient to satisfy the Osman test. Dr Suresh’s Trust being “significantly concerned about [his] wellbeing,” him being “visibly distressed” and stating that he was “suffering from disturbed sleep” went only the “signs of physical or mental distress” factor identified in Fernandes de Oliviera. There was nothing to suggest suicide immediately prior to Dr Suresh’s death. The judge therefore found that even if the duty had arisen, the Defendant did not actually or constructively know of a real and immediate risk to life [263]-[264].
Comment
Three points of note emerge from the human rights claim in Suresh.
First,the Claimants failed to establish that the operational duty crystallised. This means that the GMC will not be under an operational duty to protect the lives of doctors under investigation upon sending a letter informing them of the investigation, even if they know of a real and immediate risk to life of a doctor they are investigating. Although Suresh only relates to GMC investigations, the analysis is applicable more widely to other regulatory cases. The Article 2 operational duty is therefore unlikely to arise in other regulatory investigations, such as in NMC or GDC proceedings.
Secondly, Suresh provides a useful clarification of the approach to the Article 2 operational duty. It is not necessary to establish an assumption of responsibility or control to find that there is such a duty. However, the factors identified in Suresh – assumption of responsibility, control, exceptionality of risk, vulnerability – will be relevant, individually and cumulatively, in determining whether the duty exists.
Thirdly, it is interesting to note the court’s use of the common law concept of assumption of responsibility to establish whether there was an assumption of responsibility for the purposes of the human rights claim. In considering the negligence claim, the judge held that the GMC does not assume responsibility for the safety and welfare of the doctor under investigation ([187]-[188]). In respect of the human rights claim, that analysis could simply be transposed: “those considerations apply here too.” [248(i)]. Therefore, when determining whether there is an assumption of responsibility by the State for the purposes of the Article 2 operational duty, common law cases involving assumption of responsibility, such as HXA v Surrey County Council [2023] UKSC 52 and Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33 will provide significant assistance. Whilst this makes matters practically more straightforward, one might query whether, given the arguably divergent rationales of human rights and negligence liability, it is in fact normatively appropriate to directly implant common law duty of care concepts into the human rights analysis (see D Nolan,“Negligence and Human Rights Law: The Case for Separate Development”(2013) 76 MLR 286 cf. V Stoyanova, “Common Law Tort of Negligence as a Tool for Deconstructing Positive Obligations under the European Convention on Human Rights” (2019) 24(5) IJHR 632).
Matthew Leitch is a barrister at 1 Crown Office Row.
Jeremy Hyam KC and Martin Forde KC, also of 1 Crown Office Row, appeared respectively for the Claimants and the Defendant. They were not involved in the writing of this post.
