QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|General Medical Council
Mark Shaw QC (instructed by GMC Legal) for the Respondent
Hearing dates: 21-23 January 2009
Crown Copyright ©
Mr Justice Cranston :
(a) Fitness to Practise Panels of the General Medical Council
(b) Appeals from a Fitness to Practise Panel
" it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors: (i) The body from whom the appeal lies is a specialist Tribunal whose understanding of what the medical profession expects from its members in matters of medical practice deserve respect: (ii) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; (iii) The questions of primary and secondary fact and the over-all value judgment to be made by Tribunal, especially the last, are akin to jury questions to which there may be reasonably be different answers." (para 197).
Impairment of fitness to practise
"(2) 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."
Impaired fitness to practice replaced the separate procedures for "serious professional misconduct", "conviction", "seriously deficient performance" and "serious impairment of fitness to practise by reason of a physical or mental condition". The change was part of a revamp of the General Medical Council. The rationale was that a unified process for impairment of fitness to practice would be simpler, speedier and bring about a more meaningful involvement of those who bring cases to the GMC's attention: Department of Health, Reform of the General Medical Council. A Paper for Consultation, May 2002, para 22.
(a) Meaning of the concept
" (a) that the doctor presented a risk to patients, (b) that the doctor had brought the profession into disrepute, (c) that the doctor had breached one of the fundamental tenets of the profession and (d) that the doctor's integrity could not be relied upon. Lack of integrity might or might not involve a risk to patients. It might or might not bring the profession into disrepute. It might be regarded as a fundamental tenet of the profession. I think it right to include it as a separate reason why a doctor might be regarded as unfit to practise, because it is relevant even when it arises in a way that is quite unrelated to the doctor's work as a doctor (para 25.50). "
"it is clear that the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise either with restrictions on registration or at all (para 11)."
As Mitting J accurately observed in Zygmunt v General Medical Council  EWHC 2643 (Admin), this effectively begs the question.
(b) A two-step process
"(1) Mere negligence does not constitute "misconduct" within the meaning of section 35C(2)(a) of the Medical Act 1983. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to "misconduct".
(2) A single negligent act or omission is less likely to cross the threshold of "misconduct" than multiple acts or omissions. Nevertheless, and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as "misconduct".
(3) "Deficient professional performance" within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work.
(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute "deficient professional performance".
(5) It is neither necessary nor appropriate to extend the interpretation of "deficient professional performance" in order to encompass matters which constitute "misconduct"."
Absent from this consideration, because it was not relevant, was that culpable conduct under section 35C need not occur in relation to clinical treatment. An obvious example is sexual misconduct with patients; another could arise from giving expert evidence in court (e.g. Meadow v General Medical Council  EWCA Civ 1390;  QB 462).
(c) Context of misconduct etc.
"In short, the purpose of [fitness to practise] proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past" (para 32).
Appeals because of inadequate evidence or mistake of fact
Reasons of a Fitness to Practise Panel
"It remains difficult to state precisely the standard of reasoning the court will demand. Much depends upon the particular circumstances and the statutory context in which the duty to give reasons arises. It is clear that the reasons given must be intelligible and must adequately meet the substance of the arguments advanced. The reasons must generally state the decision-maker's material findings of fact (and, if the facts were disputed at the hearing, their evidential support), and meet the substance of the principal arguments that the decision-maker was required to consider. In short, the reasons must show that the decision-maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they lost or, the case may be, won (para 7-104; footnotes excluded)."
"85 [E]very Tribunal (including the PCC of the GMC) needs to ask itself the elementary questions: is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost?
86. If in asking itself those questions the PCC comes to the conclusion that in answering them it needs to explain the reasons for a particular finding or findings of fact that, in my judgment, is what it should do. Very grave outcomes are at stake. Respondents to proceedings before the PCC of the GMC are liable to be found guilty of serious professional misconduct and struck of the Register. They are entitled to know in clear terms why such findings have been made."
Sir Mark Potter P agreed. There was no general duty to give reasons or decisions on matters of fact, in particular when the essential issue was one of credibility on reliability of evidence in the case, but there were cases when fairness demanded it. Such cases were "those where, without such reasons, it will not be clear to the losing party why he has lost: at para . Sir Mark Potter P added that it was not a necessary ingredient of the requisite clarity required that the reasons should be expressly stated when they were otherwise obvious.
(a) General principles
"(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."
If a Panel finds that a doctor's fitness to practise is not impaired it may nonetheless issue a warning as to future conduct or performance. The Indicative Sanctions Guidance set out factors which may make each of these sanctions appropriate. With suspension, the Guidance lists as non-exhaustive factors for non-health cases the following: serious instance of misconduct, but where a lesser sanction is not sufficient; conduct not fundamentally incompatible with continuing to be a registered doctor; no evidence of harmful deep-seated personality or attitudinal problems; no evidence of repetition of the behaviour since the incident; and the Panel is satisfied the doctor has insight and does not pose a significant risk of repeating the behaviour.
(b) Section 47 of the Medical Act 1983
"47. Appointments not to be held except by fully registered practitioners.
(1) Subject to subsection (2) below, no person who is not fully registered shall hold any appointment as physician, surgeon or other medical officer
(b) in any hospital or other place for the reception of persons suffering from mental disorder, or in any other hospital, infirmary or dispensary not supported wholly by voluntary contributions,
(d) in any other public establishment, body or institution,
(3) none of the suspension events mentioned in subsection (4) below shall terminate any appointment such as is mentioned in subsection (1) above, but the person suspended shall not perform the duties of such an appointment during the suspension.
(4) The suspension events are
(a) the suspension of registration of a person by a Fitness to Practise Panel
(i) following a finding of impairment of fitness to practise by reason of deficient professional performance or adverse physical or mental health under section 35D above "
Since section 47 (4)(a)(i) refers to "deficient professional performance", and not misconduct, the ordinary rules of statutory interpretation would regard that as a deliberate legislative choice. In other words, a finding of impairment of fitness to practise by reason of misconduct is not excluded from the terminating effect of subsection (1). In Tarnesby v Kensington and Chelsea and Westminster Area Health Authority (Teaching)  ICR 615, the predecessor to section 47 (1), in the Medical Act 1956, was considered by the House of Lords. There a part-time consultant psychiatrist had been struck off, but on appeal a suspension of twelve months was substituted. His hospital board informed him that, in view of the suspension, his contract of service with them was at an end. The House of Lords agreed with that result. Lord Russell said (at 618 D-F):
"Erasure would clearly in my opinion have brought about the statutory ban in this case and an automatic termination by law of the appellant's appointment, and of the contract with the board which was the basis of that appointment. The contention put forward was that the appointment was one thing and the contract of employment was another, the section affecting only the appointment. I am wholly unable to accept that proposition: the contract of employment and the appointment were not two things but one.
Does that substitution [of suspension] have any effect on the operation of section 28 (1) of the Act of 1956? In my opinion the answer to that question is plainly in the negative."
The other law lords agreed, Lord Bridge being "fully conscious of the untoward consequences to which such a conclusion may lead" (at 621 H). Lord Bridge said later that "this appeal uncovers a hitherto unsuspected and most unfortunate situation, which calls for urgent legislation to remedy it" (at p. 623B).
THE PANEL'S FINDINGS ON HEADS OF ALLEGATION
Basis of factual findings
Consent: what was said to Mrs Swain and what should have been recorded
The readmission and what followed
IMPAIRMENT OF FITNESS TO PRACTISE
"The Panel has found that you did not take sufficient notice of the signs of infection being displayed, especially in the period immediately prior to discharge from Hospital on 16 April 2002.
The Panel has taken account of the fact that Dr Kullar had examined Mrs Swain on 23 April 2002, and had diagnosed a leaking graft. The Panel is satisfied that you were made aware of this.
The Panel is concerned that your decision then to manage Mrs Swain conservatively was incorrect. This was further compounded by your failure to institute a management plan. The Panel is concerned by your continued failure to consider and if necessary institute surgical intervention between 23 and 26 April 2002. Mrs Swain was an elderly woman who suffered from diabetes. Use of a prosthetic graft carried a consequent increased risk of infection. She was therefore at risk and required particular vigilance and attention. You failed to conform to this requirement
The Panel is concerned that during the period 2 to 26 April 2002 there was a series of failures on your behalf in relation to your treatment of Mrs Swain. You failed adequately to explain and discuss alternative treatment options and the risks and dangers of the surgery you proposed to carry out; you failed to record discussions with the patient at the time she signed the consent form; you failed to take sufficient notice of infection; you failed to attend the patient over a period of 4 consecutive days (save for one fleeting chance encounter) when there were numerous opportunities for you to do so and when in the light of her age and manifestly serious condition, there was an essential and urgent need for you to do so.
Your actions and omissions amount to serious failures to meet the standards set out in 'Good Medical Practice'.
You failed to comply with this guidance [on seeking consent] which was particularly significant in view of the high risk element of this procedure performed on this vulnerable patient.
In all the circumstances the Panel finds that your actions and omissions amounted to misconduct and that this misconduct was serious. Whilst accepting that the events in question relate to one patient during one month five years ago, the Panel is concerned that, far from being a single simple human error, your conduct was a catalogue of serious failures and omissions over a period of almost 4 weeks. Accordingly the Panel finds your fitness to practise to be impaired by reason of misconduct."
Thus the misconduct which was the basis for the Panel's finding related to the treatment of Mrs Swain in April 2002. The Panel made clear that it had taken account of the circumstances at Old Church hospital at that time. It also accepted in Mr Cheatle's favour that the allegations concerned an isolated error relating to one patient and that his practice was marked by no other adverse disciplinary findings.