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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Remedy UK Ltd, R (on the application of) v The General Medical Council  EWHC 1245 (Admin) (28 May 2010)
Cite as:  EWHC 1245 (Admin),  Med LR 330,  ACD 72
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KEITH
| THE QUEEN (on the application of REMEDY UK LIMITED)
|- and -
|THE GENERAL MEDICAL COUNCIL
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Robert Englehart QC and Miss Gemma White (instructed by the General Medical Council) for the Defendant
Hearing date: 11 May 2010
Crown Copyright ©
Lord Justice Elias :
"to protect, promote and maintain the health and safety of the public."
"sparked the biggest crisis in the medical profession in a generation", and in a legal challenge to the modification of the MTAS scheme brought before Goldring J (R (on the application of Legal Remedy UK Limited) v Secretary of State for Health)  EWHC 1252 (Admin), 96 BMLR 191) the judge dismissed the application but observed that:
"The premature introduction of MTAS has had disastrous consequences."
"We are instructed on behalf of RemedyUK and are writing to request that these two doctors be investigated for their role as managers integrally involved in the introduction of [MTAS and SSR] .. We believe that their professional and managerial actions and conduct in relation to SSR/MTAS fell seriously below the high standards that are expected by the profession, as laid out in 'Management for Doctors' and elsewhere. Their deficient performance, and their failure to meet the published GMC Guidance for Doctors in management roles, was so significant that their actions amount to misconduct and/or deficient professional performance; we therefore submit that their fitness to practice in this managerial field of work is impaired under section 35C of the Medical Act 1983."
"Our specific complaints in relation to SSR/MTAS relate to: the unfitness for purpose of both the computer system and the shortlisting and interviewing system; the lack of piloting and the decision to proceed before it had been shown to be fit for purpose; and the failure to adequately heed or address the risks that were identified in advance. The consequential impact on individual doctors and their patients and on the medical community has been substantial."
"Section 35C is concerned with allegations that a registered medical practitioner's fitness to practice is impaired. It is only 'misconduct' or 'deficient professional performance' material to a practitioner's fitness to practice that can fall within section 35C(2): see, for example, Calhaem v General Medical Council  EWHC 2606 at . Bearing that in mind, I have concluded that your allegations against Sir Liam Donaldson and Dr Thomas do not fall within section 35C(2) and that, accordingly, I should not refer them to case examiners.
You suggest in your letter that there is here a case of either or both of 'deficient professional performance' and 'misconduct'. I address each of these concepts in turn.
Deficient professional performance
Deficient professional performance was first introduced into the Medical Act 1983 by the Medical (Professional Performance) Act 1995. It was introduced to fill a perceived lacuna in the 1983 Act. There have subsequently been changes of terminology. However, it is plain on the authorities, and on the statutory scheme (see, for example, the provisions about performance assessments), that section 35C(2) is concerned with deficient performance in a clinical setting. I do not consider that allegations such as you make, which have nothing to do with practice of medicine by Sir Liam Donaldson or Dr Thomas, can sensibly be said to fall within section 35C(2).
Your letter has assembled a large number of selected quotations about the perceived deficiencies of MTAS and its implementation. It is, nevertheless, non-specific about the actual conduct of, respectively, Sir Liam Donaldson and Dr Thomas that is said to have constituted misconduct by them as individuals. But, irrespective of that feature, I have concluded that your letter does not make allegations that would fall within section 35C(2)(a) of the 1983 Act. That sub-section is directed at conduct material to a practitioner's fitness to practise. Whatever the conduct of Sir Liam Donaldson and Dr Thomas with regard to MTAS, I do not consider that it can sensibly be said to impinge on their fitness to practice as medical practitioners. "
The legal framework.
"A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect."
"(1) An allegation shall initially be considered by the Registrar.
(2) Subject to paragraph (5) and rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8."
"whether the allegation is capable of producing a finding of misconduct."
The same test would apply to deficient performance cases.
"allegation that the fitness to practise of a practitioner is impaired." (rule 2).
"Where the Panel find that the person's fitness to practise is impaired they may, if they think fit
(a) except in a health case, direct that the person's name shall be erased from the register;
(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests."
"In the present case the critical issue is whether, if there was misconduct, the misconduct was 'professional misconduct.' As counsel for the General Medical Council pointed out it is not simply clinical misconduct which is in issue. Professional misconduct extends further than that. So it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what that link may be and how it may occur is a matter of circumstances. The closest link is where the practitioner is actually engaged on his practice with a patient. Cases here may occur of a serious failure to meet the necessary standards of practice, such as gross neglect of patients or culpable carelessness in their treatment, or the taking advantage of a professional relationship for personal gratification.
But certain behaviour may constitute professional misconduct even although it does not occur within the actual course of the carrying on of the person's professional practice, such as the abuse of a patient's confidence or the making of some dishonest private financial gain. In Allinson v. General Council of Medical Education and Registration  1 Q.B. 750, 761, infamous conduct in a professional respect was held to be established where a doctor by public advertisement had warned the public to avoid other practitioners and recommended them to apply to himself. Lord Esher M.R. adopted, at pp. 760-761, the definition which Lopes L.J. propounded in the same case of 'at any rate one kind of conduct amounting to "infamous conduct in a professional respect.'" The definition was that such conduct could be established:
'If it is shown that a medical man, in the pursuit of his profession,
has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency '"
"..if the conduct, though reprehensible in anyone is in the case of the professional man so much more reprehensible as to be defined as disgraceful, it may, depending on the circumstances, amount to conduct disgraceful of him in a professional respect in the sense that it tends to bring disgrace on the profession which he practises."
"He was both a registered medical practitioner and chief executive of a hospital. In each capacity he had a duty to care for the safety and well-being of the patients. As chief executive that duty arose out of his holding of that appointment. As a registered medical practitioner he had the general obligation to care for the sick. That duty did not disappear when he took on the appointment but continued to co-exist with it. There was a sufficiently close link with the profession of medicine in the case of the doctor as chief executive of a hospital in respect of patients at the hospital."
" nobody suggested before the panel that it adopted the wrong procedure or that it lacked jurisdiction. Equally nobody suggested that the FPP could not investigate the question whether Professor Meadow was guilty of serious professional misconduct because the alleged misconduct occurred in connection with evidence prepared and given in court and did not arise out of a clinical or doctor and patient relationship. This is scarcely surprising since there is ample authority for the proposition that a professional may face FTP proceedings, not just for conduct strictly within his professional capacity, but also for conduct in his private capacity: see e g A County Council v W (Disclosure)  1 FLR 574, approved by the Privy Council in Roylance v General Medical Council (No 2)  1 AC 311, 322. In any event this is of course a case in which the allegations related to conduct within Professor Meadow's professional capacity."
"As Lord Clyde noted in Roylance v General Medical Council (No 2)  1 AC 311, 330-332, 'serious professional misconduct' is not statutorily defined and is not capable of precise description or delimitation. It may include not only misconduct by a doctor in his clinical practice, but misconduct in the exercise, or professed exercise, of his medical calling in other contexts, such as that here in the giving of expert medical evidence before a court. As Lord Clyde might have encapsulated his discussion of the matter in Roylance v General Medical Council (No 2), it must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute, and it must be serious. As to seriousness, Collins J, in Nandi v General Medical Council  EWHC 2317 (Admin) at , rightly emphasised the need to give it proper weight, observing that in other contexts it has been referred to as 'conduct which would be regarded as deplorable by fellow practitioners'.
It is also common ground that serious professional misconduct for this purpose may take the form, not only of acts of bad faith or other moral turpitude, but also of incompetence or negligence of a high degree: see Preiss v General Dental Council  1 WLR 1926, para 28. It may also be professional misconduct where, as here, a medical practitioner, purporting to act or speak in such expert capacity, goes outside his expertise."
"It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the degree of opprobrium that inevitably attaches to the disciplinary offence."
"Seriously deficient performance is 'a departure from good professional practice, whether or not it is covered by specific GMC guidance, sufficiently serious to call into question a doctor's registration.' This means that we will question your registration if we believe that you have been, repeatedly or persistently, not meeting the professional standards appropriate to the work you have been doing especially if you might be putting patients at risk."
"Seriously deficient performance .can extend to such matters as poor record-keeping, poor maintenance of professional obligations of confidentiality, or even deficiencies (if serious and persistent) in consideration and courtesy towards patients. It does not depend on proof of causation of actionable loss."
Since grossly deficient performance may amount to serious professional misconduct, it follows that errors of this nature may also, in an appropriate case, justify a finding of serious professional misconduct.
(1) Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession.
(2) Misconduct falling within the first limb need not arise in the context of a doctor exercising his clinical practice, but it must be in the exercise of the doctor's medical calling. There is no single or simple test for defining when that condition is satisfied.
(3) Conduct can properly be described as linked to the practice of medicine, even though it involves the exercise of administrative or managerial functions, where they are part of the day to day practice of a professional doctor. These functions include the matters identified in Sadler, such as proper record-keeping, adequate patient communication, proper courtesy shown to patients and so forth. Usually a failure adequately to perform these functions will fall within the scope of deficient performance rather than misconduct, but in a sufficiently grave case, where the negligence is gross, there is no reason in principle why a misconduct charge should not be sustained.
(4) Misconduct may also fall within the scope of a medical calling where it has no direct link with clinical practice at all. Meadow provides an example, where the activity in question was acting as an expert witness. It was an unusual case in the sense that Professor Meadow's error was to fail to recognise the limit of his skill and expertise. But he failed to do so in a context where he was being asked for his professional opinion as an expert paediatrician. Other examples may be someone who is involved in medical education or research when their medical skills are directly engaged.
(5) Roylance demonstrates that the obligation to take responsibility for the care of patients does not cease simply because a doctor is exercising managerial or administrative functions one step removed from direct patient care. Depending upon the nature of the duties being exercised, a continuing obligation to focus on patient care may co-exist with a range of distinct administrative duties, even where other doctors with a different specialty have primary responsibility for the patients concerned.
(6) Conduct falls into the second limb if it is dishonourable or disgraceful or attracts some kind of opprobrium; that fact may be sufficient to bring the profession of medicine into disrepute. It matters not whether such conduct is directly related to the exercise of professional skills.
(7) Deficient performance or incompetence, like misconduct falling within the first limb, may in principle arise from the inadequate performance of any function which is part of a medical calling. Which charge is appropriate depends on the gravity of the alleged incompetence. Incompetence falling short of gross negligence but which is still seriously deficient will fall under section 35C(2)(b) rather than (a).
(8) Poor judgment could not of itself constitute gross negligence or negligence of a high degree but it may in an appropriate case, and particularly if exercised over a period of time, constitute seriously deficient performance.
(9) Unlike the concept of misconduct, conduct unrelated to the profession of medicine could not amount to deficient performance putting fitness to practise in question. Even where deficient performance leads to a lack of confidence and trust in the medical profession, as it well might - not least in the eyes of those patients adversely affected by the incompetent doctor's treatment - this will not of itself suffice to justify a finding of gross misconduct. The conduct must be at least disreputable before it can fall into the second misconduct limb.
(10) Accordingly, action taken in good faith and for legitimate reasons, however inefficient or ill-judged, is not capable of constituting misconduct within the meaning of section 35C(2)(a) merely because it might damage the reputation of the profession. Were that not the position then Professor Meadow would have been guilty of misconduct on this basis alone. But that was never how the case was treated.
Mr Justice Keith: