Regulatory
Law

Fitness to practise panel criticized

‘Inadequate and superficial reasoning’

Serious criticism of the GMC Fitness to Practise panel when working under the former rules was made by Mitting J in the Queen’s Bench Division recently in respect of medical research which led to great public controversy.
Dr Walker-Smith was a Consultant Paediatric Gastroenterologist engaged in research into bowel and behavioural disorders in children. In 1995, the Lancet published a paper by Dr. Wakefield and three other authors which suggested that measles virus, whether contracted naturally or as the intended result of measles vaccine, had a part in the aetiology of inflammatory bowel disease, in particular Crohn's disease and ulcerative colitis.
In 2010 the Preliminary Proceedings Committee to a Fitness to Practise Panel of the GMC concluded that he and another doctor were guilty of serious professional misconduct and struck them from the register.
Unfortunately, the panel considered the case on a mistaken basis. The GMC case was that the Professor was undertaking research, which required Ethics Committee approval, without realising that he was doing so. Mitting J described this as ‘an untenable proposition’. Their finding of guilt, he said, may have been reached upon the basis of two fundamental errors – that Professor Walker-Smith’s intention was irrelevant and that it was not necessary to determine whether he had lied to the Ethics Committee. It is, he said, a determination which could not stand unless it was justified by the detailed findings made in relation to the eleven children in question.
As the judge remarked, ‘If, as both parties urged upon the panel, its starting point was the guidance given by the Royal College, it could not reasonably have concluded that the intention of the practitioner was irrelevant to the determination of the question, medical practice or research?; or even that it was of little weight. The guidance, read as a whole, treats the intention of the person conducting the activity as an essential factor in the determination of the difference. For this purpose, there is no practical difference between "intention" and "purpose"…’
The learned judge held that ‘the panel's overall conclusion that Professor Walker-Smith was guilty of serious professional misconduct was flawed in two respects: inadequate and superficial reasoning and, in a number of instances, a wrong conclusion… It had to decide what Professor Walker-Smith thought he was doing: if he believed he was undertaking research in the guise of clinical investigation and treatment, he deserved the finding that he had been guilty of serious professional misconduct and the sanction of erasure; if not, he did not, unless, perhaps, his actions fell outside the spectrum of that which would have been considered reasonable medical practice by an academic clinician. Its failure to address and decide that question is an error which goes to the root of its determination.’
Walker-Smith v General Medical Council [2012] EWHC 503 (Admin).