The Fitness to Practise Panel of the GMC
The following comments of Sales J in the case of Yeong v General Medical Council EWHC 1923 (Admin) helpfully clarify the change in approach of the new legislation.
‘The regime based on impairment of fitness to practise is based on amendments to the Act which came into effect in 2004. Before that, the relevant concept under the statutory regime for matters relating to a medical practitioner's conduct was that of serious professional misconduct rather than impairment of fitness to practise.
‘It appears that a reason for the change in concept may have been to emphasise that the regime under the Act is concerned with a medical practitioner's current and future fitness to practise rather than with imposing penal sanctions for things done in the past, although that was also the case under the previous version of the regime (in common with the position in relation to a range of bodies which regulate professionals): General Medical Council v Meadow  EWCA Civ 1390, -. The statute requires the FTPP to consider whether the fitness of a medical practitioner to practise "is" impaired: see s. 35D(2). Accordingly, the FTPP has to assess the current position looking forward not back: see also Meadow at  per Sir Anthony Clarke MR; Zygmunt v General Medical Council  EWHC 2643 (Admin) at  (Mitting J). However, as Sir Anthony Clarke MR also observed in Meadow at : "… in order to form a view of the fitness of a person to practise today, it is evident that [the FTPP] will have to take account of the way in which the person concerned has acted or failed to act in the past."
‘Important features of the statutory regime under the Act remain unchanged. As previously, the purpose of a FTPP (acting for the GMC) is to regulate the medical profession for the benefit of the public. Section 1(1A) of the Act states that the main objective of the GMC is "to protect, promote and maintain the health and safety of the public". In the light of that objective, the reference to "misconduct" in s. 35C(2)(a) of the Act is to be construed as signifying no lower threshold for disciplinary intervention by the GMC than the previous concept of "serious professional misconduct": Meadow at - (Auld LJ). The misconduct must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute and it must be serious – the sort of conduct "which would be regarded as deplorable by fellow practitioners": ibid at . ....
‘It is a corollary of the test to be applied and of the principle that a FTPP is required to look forward rather than backward that a finding of misconduct in the past does not necessarily mean that there is impairment of fitness to practise – a point emphasised in Cohen v General Medical Council  EWHC 581 (Admin), at - (Silber J), and Zygmunt, at . In looking forward, the FTPP is required to take account of such matters as the insight of the practitioner into the source of his misconduct, any remedial steps which have been taken and the risk of recurrence of such misconduct. It is required to have regard to evidence about these matters which has arisen since the alleged misconduct occurred: see Cohen, at  to , and Azzam v General Medical Council  EWHC 2711 (Admin), at  (McCombe J).
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