GMC Registrar
REMEDY UK LIMITED, R (ON THE APPLICATION OF) v. GENERAL MEDICAL COUNCIL [2010] 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 Rita
Powell v. GMC
[2009] EWHC 1061 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
[2000] 1 AC 311, Allinson v. GMC [1894] 1 QB
750, Marten v. Royal College of Veterinary
Surgeons Disciplinary Committee 1966 [1 QB] and
Meadow v. GMC [2007] 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.”
Conclusion
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.
AJC 5/07/10
Categories: 5th edition, Chapter 18, updates