REMEDY UK LIMITED, R (ON THE APPLICATION OF) v. GENERAL MEDICAL COUNCIL  EWHC 1245 (ADMIN) 28TH MAY 2010
1. This case restates and clarifies (i) the role of the Registrar in his function to refer matters which were the allegation is capable of producing a finding of misconduct to the relevant case examiners and (ii) the definition of Fitness to Practise.
2. A complaint was made by the Applicants that the Registrar of the GMC failed properly to refer a case of potential issue of Fitness to Practise in respect of Sir Liam Donaldson the Chief Medical Officer for England who occupied a senior executive position at the Department of Health and Professor Sarah Thomas who chaired the Medical Training Appointments System Recruitment and Selection Steering Group. The essence of the allegation was that they were responsible for a flawed and failed policy called “Modernising Medical Careers” which the Department of Health and others devised and introduced for the purposes of recruiting junior doctors and a new computerised system of making appointments for junior doctors training posts. The Applicants contended that the conduct of these doctors fell seriously below the high standards that were expected by the profession as laid out in “management for doctors” and elsewhere, and that their deficient performance and their failure to meet the published GMC guidance for doctors in management roles was so significant that their actions amounted to misconduct and/or deficient professional performance to such degree that their Fitness to Practise in this managerial field of work was impaired under Section 35(c) of the Medical Act 1983.
The Role of the Registrar
3. The role of the Registrar at the initial stage was succinctly described by Collins J. in Pal, R (on the application of) v The General Medical Council  EWHC 1061 (Admin) as determining “whether the allegation is capable of producing a finding of misconduct”. The same test would apply to deficient performance cases. Where the Registrar considers that complaints should go further he must refer the matter to the case examiners and should as soon as reasonably practicable thereafter inform the practitioner of the allegations. An allegation is defined as an “allegation that the Fitness to Practise of a practitioner is impaired” (Rule 2). [Sanctions which are ultimately capable of being imposed are set out in Section 35D(2) of the Medical Act 1983.] The case involved a consideration of the authorities in relation to the meaning of misconduct including Roylance v. GMC  1 AC 311, Allinson v. GMC  1 QB 750, Marten v. Royal College of Veterinary Surgeons Disciplinary Committee 1966 [1 QB] and Meadow v. GMC  QB 462.
4. Their Lordships derive the following principles from the relevant authorities in relation to misconduct and fitness to practise:
“(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.”
5. In conclusion their Lordships rejected the Applicant’s submissions that the Registrar had failed in his duty to refer the matter to the GMC’s case examiners. Whilst accepting the GMC’s submissions that there was not a clear line mapping the boundary between conduct which is capable of rendering a doctor unfit to practise and conduct which is not, (including that the concept of fitness to practise is not solely limited to clinical practise alone, eg which may extend to other aspects of the doctor’s calling (i.e. research or the teaching of students)), they held that misconduct in relation to the exercise of functions which must be part of his medical calling or to put it another way “sufficiently closely linked to the practise of medicine”. Their Lordships did not consider that the administrative functions being exercised by the two doctors in question in this particular case could properly be so described. They held that the functions being exercised here were simply too remote from the practise of the profession of medicine to bring them within the scope of Section 35C(2).
6. In relation to the Applicant’s second limb of the misconduct complaint namely that the conduct of the doctors brought the profession into disrepute, their Lordships held that the authorities establish that the conduct must be of a kind which justifies some kind of moral censure or involve conduct which will be considered disreputable for a doctor. It is not alleged in this case that there was any act of bad faith on the part of the doctors concerned, nor in the view of their Lordships could it be sensibly asserted that the conduct of which the complaint was made was itself in any sense disreputable. The Registrar was therefore right in holding that the complaint should not proceed further and that the conduct complained of was too remote from consideration of fitness to practise whether cast in terms of misconduct or deficient performance.
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