‘… the rules require the parties at one and the same stage in the proceedings to address the question, and if appropriate call evidence to enable the Committee to decide whether the level of culpability amounts to serious professional misconduct, and having decided it, either there and then or later, and after taking account of any mitigation, to determine the consequence for the practitioner.
‘[E]vidence which may be relevant both to [the issue of guilt] and, if proved, mitigation, may overlap. Thus, the professional history of the practitioner may support a finding of serious professional misconduct on the basis that he has previously been found to have committed an identical professional error. This may not have been regarded as serious professional misconduct on the first or previous occasion, but the "history" may lead the Committee to conclude that on this occasion it does, just because the conduct in question was repeated. Without the previous history an acquittal would be appropriate. In a different context, the error under consideration may need to be examined in the context of a dedicated practitioner working in isolation and under huge pressure of, say, an epidemic. Such circumstances may be relevant to the question whether he should be found guilty of serious professional misconduct. It may indeed provide mitigation of circumstances, unrelated to penalty. If notwithstanding this evidence the case is proved, then precisely the same circumstances may also be relevant to mitigation of penalty.
‘In short, the same facts may on occasion impact both on the question whether the practitioner's conduct amounted to serious professional misconduct, and on the appropriate consequential sanction. Nevertheless, although the same evidence may be relevant on both questions, it does not follow that they cease to be distinct issues requiring separate determination.’
To the extent that they decided that evidence exclusively relevant to personal mitigation could be considered by the Committee when deciding whether serious professional misconduct was proved, the decisions in Rao v GMC  Lloyd's Med. 62 and Silver v General Medical Council  Lloyd's Med. 333 were wrong.
Per Judge LJ giving the judgment of the Court inCampbell, R (on the application of) v General Medical Council  EWCA Civ 250.
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