BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

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 [2010] EWHC 1245 (Admin) (28 May 2010)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/1245.html
Cite as: [2010] ACD 72, [2010] EWHC 1245 (Admin), [2010] Med LR 330

[New search] [View without highlighting] [Printable RTF version] [Help]


Neutral Citation Number: [2010] EWHC 1245 (Admin)
Case No: CO/2309/2009

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
28/05/2010

B e f o r e :

LORD JUSTICE ELIAS
AND
MR JUSTICE KEITH

____________________

Between:
THE QUEEN (on the application of REMEDY UK LIMITED)

Claimant
- and -

THE GENERAL MEDICAL COUNCIL
Defendant

____________________

(Transcript of the Handed Down Judgment of
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 Thomas de la Mare and Mr Tristan Jones (instructed by Leigh Day, Solicitors) for the Claimant
Mr Robert Englehart QC and Miss Gemma White (instructed by the General Medical Council) for the Defendant
Hearing date: 11 May 2010

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Elias :

  1. The General Medical Council ('the GMC') exercises a number of functions which are designed to achieve its statutory objective, defined in section 1 of the Medical Act 1983 as being:
  2. "to protect, promote and maintain the health and safety of the public."
  3. These functions include taking disciplinary action against members of the medical profession in certain defined circumstances where their fitness to practise is in question. This case raises an issue as to the limits of its disciplinary jurisdiction.
  4. As part of a policy called "Modernising Medical Careers", the Department of Health and others devised and introduced a new scheme for recruitment of junior doctors, and a new computerised system of making appointments for junior doctors' training posts. The recruitment scheme was termed "Specialty Selection and Recruitment" ('SSR'), and the appointments scheme "The Medical Training Appointments System" ('MTAS').
  5. It is now generally recognised that MTAS was a deeply flawed scheme. It was comprehensively examined in a number of public investigations, including by the House of Commons Health Select Committee, a Department of Health investigation chaired by Professor Neil Douglas, and an independent enquiry chaired by Professor Sir John Tooke. The Select Committee Report referred to the introduction of the new specialty training arrangements as "disastrous". The Douglas Report said that the introduction of MTAS had:
  6. "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) [2007] EWHC 1252 (Admin), 96 BMLR 191) the judge dismissed the application but observed that:
    "The premature introduction of MTAS has had disastrous consequences."
  7. The claimant is a company limited by guarantee. It was founded to represent doctors who had lost confidence in these training and employment reforms. It campaigns on a wide range of medical and professional issues affecting doctors, especially junior doctors. As part of its campaign, it is seeking to subject the Chief Medical Officer for England, Sir Liam Donaldson, who occupies a senior executive position at the Department of Health, and Professor Sarah Thomas, who chaired the MTAS recruitment and selection steering group, to the GMC's disciplinary processes. By this means it is seeking to hold them accountable for what the claimant perceives to be their responsibility in allowing the MTAS scheme to be adopted and implemented in circumstances which have caused damage to doctors, patients and the standing of the profession.
  8. The claimant's solicitors' detailed letter of complaint to the GMC was in the following terms:
  9. "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."
  10. Under the heading "Basis of the complaint" the letter described what it perceived as being the principal failings of the SSR/MTAS systems as follows:
  11. "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."
  12. The letter then identifies what it asserts have been the adverse consequences for patients, junior doctors, and the NHS finances. As to the impact on doctors, it referred to a study conducted by the Dean of the Royal College of Psychiatrists who carried out a survey of some 790 junior doctors and found that they showed an increased risk of suicide and other psychiatric morbidity resulting from stress, and that the loss of morale may well have adversely affected patient care. It was also alleged that the insistence on introducing a defective system had undermined the standing of the profession and had led to a loss of credibility and authority.
  13. Sir Liam Donaldson and Dr Thomas were specifically identified because it was alleged that as medical practitioners they bore the greatest degree of responsibility for the design and implementation of SSR/MTAS. Sir Liam Donaldson was criticised in particular because he had ultimate responsibility for the design and delivery of MMC. In addition it was said that he had ignored clear warnings to delay the implementation of MTAS because of the problems it would create. Professor Thomas was chosen because she was chair of the key steering group concerning recruitment and training which had been responsible in particular for developing the rules for handling applications; also she had attended all the high-level decision making committees when, it is alleged, the decision ought to have been made to stop -or at least delay - the implementation of the MTAS system.
  14. Finally, the complaint letter referred to GMC guidance entitled "Management for Doctors" and identified certain areas of good practice identified in that guidance which had allegedly been breached.
  15. By a letter dated 12 December 2008 the Registrar of the GMC determined not to refer the claimant's allegations to case examiners for further investigation. The reasons given were as follows:
  16. "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 [2007] EWHC 2606 at [26]. 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).
    Misconduct
    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. "
  17. The Registrar added that the management guidance was concerned with the role of those in managerial positions connected with the provision of medical services to patients within the NHS or elsewhere. It did not apply to the situation of these two doctors because they were not exercising functions in a clinical setting, and therefore their actions had no bearing on their fitness to practise.
  18. There is a dispute between the parties as to whether the allegations of misconduct are sufficiently specific or not. I will return to that issue later in this judgment, but it is not the central issue in the case. The Registrar has taken the view that even if the allegations were sufficiently specific, they would still not fall within the terms of section 35C(2). The issue of principle is whether the Registrar was right in so holding. That is the principal issue raised in this application for judicial review.
  19. The legal framework.

  20. Section 35C of the 1983 Act applies where an allegation is made to the GMC against a registered person that his or her fitness to practise medicine is impaired. Section 35C(2) is as follows:
  21. "A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of –
    (a) misconduct;
    (b) deficient professional performance;
    (c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
    (d) adverse physical or mental health; or
    (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."
  22. This particular formulation was the result of an amendment to the 1983 Act taking effect in November 2004. However, it is common ground that the concept of misconduct is the same as the term "serious professional misconduct" found in the earlier legislation. So authorities under the original legislation are still applicable to the current rules.
  23. The concept of deficient performance was introduced by the Medical (Professional Performance) Act 1995. Until then the power to take action in relation to a person's registration was limited to cases of serious professional misconduct, the commission of criminal offences or serious impairment of fitness to practise by reason of ill health. Whilst some acts of incompetence could be brought within the scope of misconduct, not all could. The 1995 Act was intended to fill that lacuna, as the Registrar made clear in her decision in this case. In fact as initially drafted, the focus of this provision was not on competence as such but rather on the related but distinct concept of "past professional performance", as the Privy Council pointed out in Krippendorf v General Medical Council [2001] 1 WLR 1054. As the facts of that case demonstrated, this could sometimes cause difficulties in effectively regulating lack of competence. However, there is now a definition of professional performance in section 55 of the 1983 Act which states that it "includes a medical practitioner's professional competence." It appears, therefore, that all aspects of competence may now be the subject of investigation in the fitness to practise procedures.
  24. The procedure.

  25. Under Section 35C(4) of the Act an investigation committee first considers the allegation and decides whether it should be considered by a fitness to practise panel. However, rules may make provision for the Registrar and others to exercise functions for which the investigation committee is responsible. Such rules have been made pursuant to section 35CC of the Act and are contained in the General Medical Council (Fitness to Practise) Rules 2004/2608 ('the 2004 Rules').
  26. Rule 4 of those Rules provides as follows:
  27. "(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."
  28. Rule 4(3) makes clear what is implicit in rule 4(2), namely that if the Registrar does not consider that the case falls within section 35C(2), he or she should not send it any further and the complaint comes to an end. The Registrar must then notify the practitioner concerned and the complainant.
  29. The role of the Registrar at the initial stage was succinctly described by Collins J in Rita Pal v GMC [2009] EWHC 1061 (Admin), a misconduct case, when he said (para 45) that the question is:
  30. "whether the allegation is capable of producing a finding of misconduct."

    The same test would apply to deficient performance cases.

  31. Where the Registrar considers that the complaint should go further, he must refer the matter to the case examiners and should as soon as is reasonably practicable thereafter inform the practitioner of the allegations. An allegation is defined as an:
  32. "allegation that the fitness to practise of a practitioner is impaired." (rule 2).
  33. The sanctions which may ultimately be imposed are set out in section 35D(2):
  34. "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."

    The authorities.

  35. In the course of argument we were referred to a number of authorities which have considered the scope of the concepts of misconduct and deficient professional performance.
  36. We were referred by the parties to four cases in particular. The leading case on the meaning of misconduct is the judgment of the Privy Council in Roylance v GMC [2000] 1 AC 311. Disciplinary proceedings were taken against a consultant radiologist who was the chief executive officer of an NHS Trust. The doctor had been made aware on a number of occasions of concerns at the high death rate resulting from operations carried out on young children at a particular hospital by two paediatric surgeons. He was found guilty of professional misconduct on the grounds that he should have taken action to investigate these concerns, and in one particular case it was found that he ought to have taken steps to prevent a particular operation from proceeding. One of his grounds of appeal was that he was not a specialist paediatrician and that any failings as chief executive officer could not constitute relevant misconduct within the meaning of section 35C.
  37. Lord Clyde, giving the judgment of the Privy Council, sought to give guidance as to what might amount to serious professional misconduct, whilst emphasising that no exhaustive definition could be provided. He noted that misconduct "is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances." He then gave examples of cases where the misconduct might occur in the course of practising as a doctor. He agreed with the GMC that such professional misconduct was not limited to clinical misconduct (p.331):
  38. "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 [1894] 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 … '"
  39. His Lordship then identified another category of case where the professional misconduct complained about is removed altogether from the practice of medicine. This will occur where the doctor is guilty of immoral, outrageous or disgraceful conduct. An example is where the doctor has committed sexual abuse in circumstances not involving a patient, such as occurred in A County Council v W (Disclosure) [1997] 1 FLR 574. Such conduct may reflect adversely on the medical profession and raise issues as to the doctor's fitness to practise. Even conduct falling short of moral turpitude might suffice, such as reprehensible conduct which becomes more serious, and may be described as disgraceful conduct, when it reflects on professional obligations and brings the profession into disrepute.
  40. Lord Clyde gave the example drawn from Marten v Royal College of Veterinary Surgeons Disciplinary Committee [1966] 1 QB 1 where a farmer, who was also a veterinary surgeon, was found to have failed adequately to care for his animals. He was found guilty of professional misconduct. Lord Parker CJ said this:
  41. "..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."
  42. Lord Clyde recognised that on the facts of Roylance itself the conduct of the doctor was not such as to constitute moral turpitude, nor did it bring the profession into disrepute. So was it linked to the profession of medicine? The Privy Council held that it was. It was no answer for the doctor to say that he was acting as an administrator rather than in a medical capacity. He did not discard his duty as a registered medical practitioner when he undertook the duties of chief executive; he had at all times to have regard for patient care (p.333):
  43. "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."
  44. The court found that the GMC was entitled to find that serious medical misconduct was established on the facts of that case.
  45. The second case is Meadow v GMC [2007] QB 462. Professor Meadow had given evidence as an expert witness at the trial of a defendant who was charged with, and later convicted of, the murder of her two children. Her defence was that they were both cot deaths. The doctor sought to express an opinion before the jury about the statistical chances of two cot deaths occurring in one family, which he thought would be unlikely in the extreme. The evidence was highly pertinent to the case but was fundamentally misconceived; the doctor had misunderstood the significance of the statistics. The GMC's Fitness to Practise Panel found that although the doctor had acted in good faith, his error constituted serious professional misconduct and they ordered his name to be erased from the register.
  46. The Court of Appeal held by a majority (Auld and Thorpe LJJ; Sir Anthony Clarke MR dissenting) that on the facts, although there was misconduct, it was not serious professional misconduct. In any event, as all members of the court accepted, the sanction of erasure would have been inappropriate, as indeed the GMC conceded at the appeal. The members of the court made certain observations about the scope of the misconduct allegation. Sir Anthony Clarke MR said this (para 38):
  47. "…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) [1997] 1 FLR 574, approved by the Privy Council in Roylance v General Medical Council (No 2) [2000] 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."

  48. Auld LJ (paras 200-201) also emphasised that the concept of professional misconduct is not limited to misconduct in clinical practice:
  49. "As Lord Clyde noted in Roylance v General Medical Council (No 2) [2000] 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 [2004] EWHC 2317 (Admin) at [31], 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 [2001] 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."
  50. The reference to the Preiss case is to the following observation of Lord Cooke of Thorndon, giving the judgment of the Privy Council:
  51. "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."
  52. In this case Auld LJ considered that the error was perpetrated in the exercise of Professor Meadow's medical calling. As the judge put it: "as an expert, he should know his limits."
  53. Krippendorf, to which I have already referred, is a Privy Council decision concerning deficient performance rather than misconduct. The court approved the following definition, whilst emphasising that it was not exhaustive, contained in a booklet which the GMC itself published (I modify the original in the manner indicated by the Court itself):
  54. "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."
  55. The final case is Sadler v GMC [2003] UKPC 59; [2003] 1 WLR 2259 which also involved seriously deficient performance rather than serious professional misconduct. The relevance of the case in this context is the observation by Lord Walker of Gestingthorpe, giving the judgment of the Judicial Committee, as to the circumstances where seriously deficient performance might occur. He said this (para 63):
  56. "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.

  57. I would derive the following principles from these cases:
  58. (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.

    The submissions.

  59. The claimant submits that the alleged wrongdoing in this case is in principle capable of falling within both section 35C(2)(a) and (b). The claimant accepts that the fitness to practise must concern the fitness to practise as a medical practitioner but submits that both authority and principle support the proposition that the alleged wrongdoing in this case, if proved, would fall into that category.
  60. As to misconduct, the claimant says that the two doctors are capable of being found to have committed misconduct falling within each of the two limbs identified above. First, they are potentially guilty of serious professional misconduct in the exercise of their medical calling. "Fitness to practise" is put in issue where a doctor commits sufficiently grave misconduct with respect to any aspect involving the use of his medical skills. As both Sadler and Meadow show, it is not limited to clinical practice. The interested parties only held the posts they did because of their medical knowledge or medical skill and, like the doctor in Roylance, they were obliged to have regard to patient care when adopting appropriate training arrangements for junior doctors.
  61. Sir Liam Donaldson and Dr Thomas were very senior administrators; it would be wholly wrong that that fact should place them beyond the scrutiny of the GMC fitness to practise panel. On the contrary, their seniority makes it all the more important that they should be held properly accountable for their actions. As Roylance makes clear, there is no bridge which separates their administrative and medical roles. These two doctors were no further removed from a clinical setting than the doctor in the Roylance case, or than was Professor Meadow.
  62. The claimant points to the fact that GMC publications themselves identify all sorts of non-clinical functions which doctors may carry out in the course of their professional practice. These may include training, education or administration. If a doctor undertakes any of these functions and performs them in a seriously deficient way, or otherwise misconducts himself or herself in the course of carrying them out, that will relate to his or her fitness to practise. It will not necessarily impinge on their fitness to practise in a clinical context, but the Registrar made a fundamental error in seeking to equate fitness to practise with clinical functions.
  63. Mr de la Mare, counsel for the claimant, accepts that in a case where clinical practice is apparently unaffected, it may well be inappropriate to stop the doctor from continuing in clinical practice by erasing him or her from the register, but that goes to the appropriate penalty rather than to the principle of whether proceedings can be taken at all. Such a case would in principle justify the GMC imposing, in a case like the Meadow case, for example, a condition that the doctor should not be involved in medico legal work.
  64. Mr de la Mare contends that the two doctors also fall within the second category of misconduct identified above, namely that they have by their wrongdoing brought the profession of medicine into disrepute. He submits that this is enough to constitute serious professional misconduct; it is not necessary to establish as an independent element that this affected their fitness to practise. One of the public interests which the GMC is required to protect is the reputation of the profession. If a doctor undermines or jeopardises that reputation, then by definition he or she is not fit to practise as a medical doctor. Such cases are not limited to situations where the doctor's conduct is immoral or dishonourable. Any misconduct which has that adverse effect on the reputation of the profession will fall within the scope of the definition.
  65. In this case the objective evidence that the profession was severely damaged by the introduction of MTAS is, he submits, overwhelming. In addition, the damage to the morale of junior doctors directly impacted on patient care. Accordingly, if the Fitness to Practise Panel were to find that there was incompetence of sufficient gravity to constitute misconduct, the only proper finding is that it relates to fitness to practise and falls within the scope of section 35C(2)(a).
  66. The GMC accepts that Roylance shows that administration cannot in all cases be divorced from medical care and that the obligations of a doctor may co-exist with the duties of an administrator. Roylance and Meadow together confirm that failings unconnected with the personal treatment of patients might, in an appropriate case, amount to misconduct going to fitness to practise as a doctor.
  67. However, Roylance itself was a case where the doctor remained under a direct obligation to protect the patients under his care at the hospital; he ought to have exercised his own medical skill and knowledge to take action to protect patients from harm. It was the inability to take that step which caused harm to patients and amounted to serious professional misconduct. That is far removed from the alleged wrongdoing here which was wholly divorced from a clinical setting and did not affect even indirectly the care of any specific patients.
  68. Similarly Meadow does not support the claimant's case. In that case the doctor concerned had committed an act of negligence in giving the cloak of professional authority to opinions which were in fact outside his field of expertise altogether. In both Roylance and Meadow the particular skills of the doctor were directly engaged, albeit that neither was acting in a clinical context.
  69. By contrast, here the two doctors were involved in the functions of government and their medical skills were only indirectly and peripherally relevant to the functions they were performing. To use Lord Clyde's words, there was no sufficiently close link between what they were doing and the profession of medicine. The fact that their medical knowledge and experience might in a general way assist them in the performance of their tasks was insufficient to justify the conclusion that they were exercising the skills of their profession. Administrative tasks will properly fall within the scope of professional practice where they are the kind of day to day tasks which are closely connected to clinical practice, as the Sadler case makes clear, but that is not the kind of administrative act or acts under scrutiny here.
  70. Conclusion.

  71. I agree with the GMC's submissions. I accept that there is not a clear line mapping the boundary between conduct which is capable of rendering a doctor unfit to practise and conduct which is not. However, in my judgment, the allegations made here fall clearly into the latter category.
  72. Plainly, as the authorities show, the concept of fitness to practise is not limited to clinical practice alone but may extend to other aspects of a doctor's calling. I see no reason why a doctor who is seriously deficient in research, or who engages in teaching students and does so in a seriously incompetent manner could not properly be subject to the fitness to practise procedures for those failings, whether via the conduct or deficient performance route. The sanction would not necessarily be erasure from the register, but a condition might be imposed, for example, prohibiting a person from teaching for a period.
  73. However, in all these examples the doctor is exercising functions which are part of his medical calling or, to put it another way, sufficiently closely linked to the practice of medicine. I do not consider that the administrative functions being exercised by these two doctors in this particular case can properly be so described. Their medical skills and experience may fit them better for the nature of the tasks they are required to undertake, but the essential skills they bring to bear are not medical. The making and implementation of government health policy is not a medical function, even where the policies in issue directly relate to doctors and closely affect the medical profession.
  74. I accept the submissions of Mr Englehart QC, counsel for the GMC, that it would be quite inappropriate for the GMC to assess the performance of the doctors in that sphere. Specialist medical skills are not the appropriate tools with which to assess such performance. Under the rules medical assessors may in an appropriate case be appointed to assess performance, but they will have the requisite special skills to pass the appropriate judgment. I do not believe that any proper or reliable assessment could be made here. The fact that the committees on which Sir Liam Donaldson and Dr Thomas serve also include administrators with no medical background is indicative of the fact that they are not operating in the traditional professional sphere. That is not, of course, to say that these doctors should not be accountable for their actions, or even that it would necessarily be wrong or inappropriate for the GMC to make representations as to their suitability to remain in post. But in my judgment, they cannot be held accountable in the manner the claimant seeks, that is through the GMC's fitness to practise procedures. The functions being exercised here are too remote from the profession of medicine to bring them within the scope of section 35C(2).
  75. This is an answer both to the misconduct charge falling under what I have termed the first limb, and the deficient performance allegation. They both relate to fitness to practise as a medical practitioner, and they both require an assessment of actions taken in the course of medical (but not limited to clinical) practice.
  76. As to the second limb of the misconduct complaint, I reject Mr de la Mare's central submission that whenever the profession is brought into disrepute, or at least arguably so, that of itself is capable of rendering any conduct which causes that consequence to constitute misconduct within the meaning of subsection (a).
  77. As I have indicated above, in my judgment the authorities establish that the conduct must be of a kind which justifies some kind of moral censure or involve conduct which would be considered disreputable for a doctor. It is not alleged here that there was any act of bad faith, nor in my view could it sensibly be asserted (and I do not think that it was) that that the conduct of which complaint was made was itself in any sense disreputable.
  78. Bad judgment does not justify moral censure, particularly where it is the decision of a committee of which the alleged wrongdoer is only one participant. Accordingly, in my judgment this limb of the misconduct definition is inapplicable, even if it could be shown that the particular conduct alleged caused damage to the standing of the profession.
  79. In my judgment, therefore, the Registrar was correct in not sending this complaint further. I accept that he may have adopted too limited a view of the jurisdiction of the Fitness to Practise panel if, when he said that the performance alleged to be deficient had to occur in a clinical setting, he was intending to exclude areas of professional practise which have no direct connection with patient care. However, he was right to hold that the conduct complained of was too remote from consideration of fitness to practise. In my judgment that is so whether cast in misconduct or deficient performance terms.
  80. Strictly it is unnecessary to consider whether he was also justified in expressing the view that the misconduct claims were insufficiently specific as to the nature of the misconduct alleged. I would not have been minded to uphold this part of the Registrar's decision. I think that the basic complaints are clear and in any event he could have asked for further particulars.
  81. Mr Englehart submits that the nature of the complaint as currently drafted makes it quite impossible for the Registrar to formulate allegations bearing upon fitness to practise. I see the force of that but only because the nature of the allegations do not sufficiently relate to fitness to practise, not because they are insufficiently particularised. So whilst the vague and ill-defined nature of the current allegations lend some support to Mr Englehart's primary submission that these allegations are not sufficiently connected with the question of fitness to practise, their lack of specificity does not in my judgment constitute an independent basis for screening out the complaints at this stage.
  82. However, for the reasons I have given, this application fails.
  83. Mr Justice Keith:

  84. I agree.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/1245.html