Appendix 2 – summary of relevant case law
Azzam v General Medical Council [2008] EWHC 2711
Dr Azzam appealed against the panel’s decision to impose a one month suspension. At the conclusion of the fact-finding stage (stage 1) Dr Azzam’s representative applied to the panel to admit evidence on Dr Azzam’s behalf in three broad categories: (1) testimonial evidence; (2) evidence as to Dr Azzam’s training following the incident in the case; and (3) evidence from a Dr Pitman as to Dr Azzam’s current performance. The application was opposed by the General Medical Council. The panel decided to admit the evidence but said that it gave it “little weight”.
The Court held that the panel’s decision to give little weight to the above evidence was wrong because this evidence was relevant to the issue of whether Dr Azzam’s fitness to practise was impaired at the date of the hearing. The Court said that a fitness to practise panel must consider facts material to the practitioner’s fitness to practise looking forward and for that purpose, to take into account evidence presented as to his/her present skills or lack of them and any steps taken, since the conduct/competence criticised, to remedy any defects in skill. The Court said that some elements of reputation and character may well be matters of pure mitigation to be taken into account at the disposal stage (stage 3) and not at stage 2. The line, however, is a fine one.
Cheatle v General Medical Council [2009] EWHC 645 (Admin)
In this case the Court considered that the 4 examples given by Dame Janet Smith in her Fifth Shipman Report helpfully set out the reasons why a decision-maker might conclude that a registrant was unfit to practise or that his/her fitness to practise was impaired. These were:
(a) The practitioner presents a risk to patients;
(b) The practitioner has brought the profession into disrepute;
(c) The practitioner has breached one of the fundamental tenets of the professions;
(d) The practitioner’s integrity cannot be relied upon.
The Court further said that considering fitness to practise required the context of the practitioner’s behaviour to be examined. The Court stated:
In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor’s behaviour both before the misconduct and to the present time, is such as to mean that his or her fitness to practise is impaired. The doctor’s misconduct may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe at all. On the other hand, the doctor’s misconduct may be such that, seen within the context of an otherwise unblemished record, a fitness to practise panel could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct.
Cohen v General Medical Council [2008] EWHC 581 (Admin)
Dr Cohen, a consultant anaesthetist, appealed against the decision of the GMC fitness to practise panel that his fitness to practise was impaired and to impose conditions on his registration. This decision was based on a complaint made by a patient. Apart from this complaint, Dr Cohen was of good character and had been a consultant anaesthetist since 1980, with no previous adverse findings against him, and with many references to support his skills and expertise. Significantly, the GMC called an expert consultant anaesthetist who, whilst critical of some of Dr Cohen’s practise, did not consider that these matters were so serious as to amount to misconduct. The expert said that the core anaesthetic treatment of the patient who had complained was carried out to a standard entirely in keeping with what might be expected of a consultant anaesthetist. The Court, in allowing the appeal, held that whether fitness to practise was impaired was a relevant factor at stage 2 of the process, rather than at stage 3 (the disposals stage). On the facts, the errors of the practitioner were easily remediable and the panel should have concluded that his fitness to practise was not impaired.
Council for Healthcare and Regulatory Excellence v Nursing and Midwifery Council (Paula Grant) [2011] EWHC 927 (Admin)
The Council for Healthcare and Regulatory Excellence (CHRE) appealed against a decision of the NMC’s Conduct and Competence Committee that Ms Grant, a registered nurse and midwife, was guilty of misconduct but that her fitness to practise was not impaired.
Ms Grant worked as a midwifery sister in a hospital. The charges against her included that she had, over some 20 months, failed to provide assistance to a junior colleague, and subjected that colleague to bullying and harassment for reporting her, had failed to provide appropriate care to a patient admitted for delivery of her baby who had died in utero and had failed to properly record that a baby born at 20 weeks’ gestation had been born alive. The Committee found that Ms G had committed misconduct but also found that her attitude had improved and that she had addressed her poor performance so that her fitness to practise was not currently impaired.
In allowing the appeal, the Court said that it was essential, when deciding whether fitness to practise was currently impaired, not to lose sight of the need to protect the public, and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. A panel should consider not only whether the practitioner continued to present a risk to members of the public in his or her current role but also whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made. The Committee in this case had not referred in its reasons to this important public interest aspect and there was nothing in its reasons to suggest that it had had regard to them.
Meadow v General Medical Council [2007] QB 462, 481H
This case concerned the provision of expert evidence by a paediatrician as part of a criminal trial. It was subsequently alleged (and found by a panel) that the evidence provided at the trial by Professor Sir Meadow was, in effect, negligent, that he was guilty of misconduct and that his fitness to practise was impaired as a result. In considering Prof Sir Meadow’s appeal, the Court said as part of its judgement:
In short, the purpose of fitness to practise proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.
Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin)
The panel found that the practitioner was guilty of dishonesty in relation to his note-taking. In considering the appeal, the Court said:
The Panel are [sic] clearly entitled to take into account, at the stage at which they determine whether fitness to practise is impaired, material other than the allegations which they have considered which suggest that it either is not impaired or is impaired.
In the view of the panel, which is not disputed, he contested the critical allegations of dishonesty and intention to mislead. That was a fact which the panel were entitled to take into account in determining whether or not his fitness to practise was impaired, even though it did not form a separate allegation against him. Indeed, it is hard to see how it could not have done.
In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him.
Saha v General Medical Council [2009] EWHC 1907
Dr Saha appealed against the panel’s decision to remove his registration following its finding that his fitness to practise was impaired by reason of misconduct. The relevant misconduct found was a failure to co-operate fully and to provide relevant information to the GMC in connection with an investigation into his conduct.
One of the issues that the Court considered was the question of separate consideration of “misconduct” and “impairment” at stage 2 of hearing proceedings.
The Court held that there no requirement for there to be a formal “two stage process” in considering the issues of misconduct and impairment. There was also no requirement for the reasons for a finding of misconduct to be distinct from the finding of impairment. The panel was required to consider whether there had been misconduct and, further, whether that misconduct was such as to impair fitness to practise. Often, a finding of impairment would follow from a finding of misconduct. In this case, the panel had found that one and the same facts gave rise to the misconduct and the impairment. The Court held that such an approach was not erroneous as a matter of law. It did, however, add:
Often a finding of impairment will follow from past misconduct but that is not necessarily the case. As Mitting J put it in Zygmunt “even though the panel... finds... misconduct, it may conclude that fitness to practise is not impaired”. After saying that in perhaps the majority of cases, the issue will not be live
(i.e. in such cases a finding of impairment will following from the finding of misconduct), Mitting J continued, in contrast, by stating that in cases in which the issue is live, then impairment “must be separately and appropriately” addressed. It is thus necessary to distinguish between cases where misconduct is, of itself, likely to lead to a finding of impairment and cases where misconduct does not necessarily lead to a finding of impairment, because of other factors to be taken into account. Such factors usually comprise events between the date of misconduct and the date of the panel hearing, such as a one-off event of misconduct followed by the passage of substantial time, an (sic) otherwise unblemished record, or subsequent retraining. In each of Zygmunt, Cohen and Cheatle, the panel had failed to take into account what had happened in the period between a one-off incident of past clinical misconduct and the date of the assessment of fitness to practise at the panel hearing.
Yeong v General Medical Council [2009] EWHC 1923 (Admin)
Dr Yeong’s GMC registration was suspended for 12 months following a sexual relationship with a former patient. Dr Yeong obtained an expert report from an experienced psychiatrist who assessed that he did not have a psychological disposition to engage in sexual relationships with patients, the likelihood of recurrence was extremely low, and that Dr Yeong did not pose a risk to patients in his professional capacity. On appeal Dr Yeong contended (amongst other things) that the panel applied an incorrect impairment test.
In dismissing the appeal, the Court said:
The question of the possibility of a recurrence of such misconduct by Dr Yeong was a matter of the ordinary assessment of likely human behaviour, in relation to which a psychiatrist’s expertise confers no special privileged insight. The assessment of risk of any particular form of future behaviour is the sort of task which courts and tribunals regularly perform without needing to refer to expert psychiatric evidence.
Importantly, the panel’s view was that the general public interest in clearly marking proper standards of behaviour for doctors in respect of relationships with their patients so as to uphold public confidence in the medical profession was by far the weightiest factor pointing in favour of the finding of impairment of fitness to practise and the sanction which was imposed.
Where a panel considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence.
Zygmunt v General Medical Council [2008] EWHC 2643 (Admin)
Professor Zygmunt appealed the panel’s decision that his fitness to practise was impaired and to impose a 2 month suspension. The allegation against Prof Zygmunt arose out of a wrong diagnosis that the patient suffered from a tumour and not an infected abscess.
The Court noted that even if a panel properly finds that a practitioner has been guilty of misconduct, it may nevertheless conclude that his/her fitness to practise is not impaired. In many, perhaps the great majority of cases, the issue will not be live, but in cases in which it is, it must be separately and appropriately addressed by the panel.
The Court went on to say that it agreed with the decision reached in the Cohen case that when fitness to practise was being considered, the task of the panel is to take account of the misconduct of the practitioner and then to consider in the light of all the other relevant factors known to them whether his or her fitness to practise is (rather than has been) impaired.
Azzam v General Medical Council [2008] EWHC 2711
Dr Azzam appealed against the panel’s decision to impose a one month suspension. At the conclusion of the fact-finding stage (stage 1) Dr Azzam’s representative applied to the panel to admit evidence on Dr Azzam’s behalf in three broad categories: (1) testimonial evidence; (2) evidence as to Dr Azzam’s training following the incident in the case; and (3) evidence from a Dr Pitman as to Dr Azzam’s current performance. The application was opposed by the General Medical Council. The panel decided to admit the evidence but said that it gave it “little weight”.
The Court held that the panel’s decision to give little weight to the above evidence was wrong because this evidence was relevant to the issue of whether Dr Azzam’s fitness to practise was impaired at the date of the hearing. The Court said that a fitness to practise panel must consider facts material to the practitioner’s fitness to practise looking forward and for that purpose, to take into account evidence presented as to his/her present skills or lack of them and any steps taken, since the conduct/competence criticised, to remedy any defects in skill. The Court said that some elements of reputation and character may well be matters of pure mitigation to be taken into account at the disposal stage (stage 3) and not at stage 2. The line, however, is a fine one.
Cheatle v General Medical Council [2009] EWHC 645 (Admin)
In this case the Court considered that the 4 examples given by Dame Janet Smith in her Fifth Shipman Report helpfully set out the reasons why a decision-maker might conclude that a registrant was unfit to practise or that his/her fitness to practise was impaired. These were:
(a) The practitioner presents a risk to patients;
(b) The practitioner has brought the profession into disrepute;
(c) The practitioner has breached one of the fundamental tenets of the professions;
(d) The practitioner’s integrity cannot be relied upon.
The Court further said that considering fitness to practise required the context of the practitioner’s behaviour to be examined. The Court stated:
In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor’s behaviour both before the misconduct and to the present time, is such as to mean that his or her fitness to practise is impaired. The doctor’s misconduct may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe at all. On the other hand, the doctor’s misconduct may be such that, seen within the context of an otherwise unblemished record, a fitness to practise panel could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct.
Cohen v General Medical Council [2008] EWHC 581 (Admin)
Dr Cohen, a consultant anaesthetist, appealed against the decision of the GMC fitness to practise panel that his fitness to practise was impaired and to impose conditions on his registration. This decision was based on a complaint made by a patient. Apart from this complaint, Dr Cohen was of good character and had been a consultant anaesthetist since 1980, with no previous adverse findings against him, and with many references to support his skills and expertise. Significantly, the GMC called an expert consultant anaesthetist who, whilst critical of some of Dr Cohen’s practise, did not consider that these matters were so serious as to amount to misconduct. The expert said that the core anaesthetic treatment of the patient who had complained was carried out to a standard entirely in keeping with what might be expected of a consultant anaesthetist. The Court, in allowing the appeal, held that whether fitness to practise was impaired was a relevant factor at stage 2 of the process, rather than at stage 3 (the disposals stage). On the facts, the errors of the practitioner were easily remediable and the panel should have concluded that his fitness to practise was not impaired.
Council for Healthcare and Regulatory Excellence v Nursing and Midwifery Council (Paula Grant) [2011] EWHC 927 (Admin)
The Council for Healthcare and Regulatory Excellence (CHRE) appealed against a decision of the NMC’s Conduct and Competence Committee that Ms Grant, a registered nurse and midwife, was guilty of misconduct but that her fitness to practise was not impaired.
Ms Grant worked as a midwifery sister in a hospital. The charges against her included that she had, over some 20 months, failed to provide assistance to a junior colleague, and subjected that colleague to bullying and harassment for reporting her, had failed to provide appropriate care to a patient admitted for delivery of her baby who had died in utero and had failed to properly record that a baby born at 20 weeks’ gestation had been born alive. The Committee found that Ms G had committed misconduct but also found that her attitude had improved and that she had addressed her poor performance so that her fitness to practise was not currently impaired.
In allowing the appeal, the Court said that it was essential, when deciding whether fitness to practise was currently impaired, not to lose sight of the need to protect the public, and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. A panel should consider not only whether the practitioner continued to present a risk to members of the public in his or her current role but also whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made. The Committee in this case had not referred in its reasons to this important public interest aspect and there was nothing in its reasons to suggest that it had had regard to them.
Meadow v General Medical Council [2007] QB 462, 481H
This case concerned the provision of expert evidence by a paediatrician as part of a criminal trial. It was subsequently alleged (and found by a panel) that the evidence provided at the trial by Professor Sir Meadow was, in effect, negligent, that he was guilty of misconduct and that his fitness to practise was impaired as a result. In considering Prof Sir Meadow’s appeal, the Court said as part of its judgement:
In short, the purpose of fitness to practise proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.
Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin)
The panel found that the practitioner was guilty of dishonesty in relation to his note-taking. In considering the appeal, the Court said:
The Panel are [sic] clearly entitled to take into account, at the stage at which they determine whether fitness to practise is impaired, material other than the allegations which they have considered which suggest that it either is not impaired or is impaired.
In the view of the panel, which is not disputed, he contested the critical allegations of dishonesty and intention to mislead. That was a fact which the panel were entitled to take into account in determining whether or not his fitness to practise was impaired, even though it did not form a separate allegation against him. Indeed, it is hard to see how it could not have done.
In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him.
Saha v General Medical Council [2009] EWHC 1907
Dr Saha appealed against the panel’s decision to remove his registration following its finding that his fitness to practise was impaired by reason of misconduct. The relevant misconduct found was a failure to co-operate fully and to provide relevant information to the GMC in connection with an investigation into his conduct.
One of the issues that the Court considered was the question of separate consideration of “misconduct” and “impairment” at stage 2 of hearing proceedings.
The Court held that there no requirement for there to be a formal “two stage process” in considering the issues of misconduct and impairment. There was also no requirement for the reasons for a finding of misconduct to be distinct from the finding of impairment. The panel was required to consider whether there had been misconduct and, further, whether that misconduct was such as to impair fitness to practise. Often, a finding of impairment would follow from a finding of misconduct. In this case, the panel had found that one and the same facts gave rise to the misconduct and the impairment. The Court held that such an approach was not erroneous as a matter of law. It did, however, add:
Often a finding of impairment will follow from past misconduct but that is not necessarily the case. As Mitting J put it in Zygmunt “even though the panel... finds... misconduct, it may conclude that fitness to practise is not impaired”. After saying that in perhaps the majority of cases, the issue will not be live
(i.e. in such cases a finding of impairment will following from the finding of misconduct), Mitting J continued, in contrast, by stating that in cases in which the issue is live, then impairment “must be separately and appropriately” addressed. It is thus necessary to distinguish between cases where misconduct is, of itself, likely to lead to a finding of impairment and cases where misconduct does not necessarily lead to a finding of impairment, because of other factors to be taken into account. Such factors usually comprise events between the date of misconduct and the date of the panel hearing, such as a one-off event of misconduct followed by the passage of substantial time, an (sic) otherwise unblemished record, or subsequent retraining. In each of Zygmunt, Cohen and Cheatle, the panel had failed to take into account what had happened in the period between a one-off incident of past clinical misconduct and the date of the assessment of fitness to practise at the panel hearing.
Yeong v General Medical Council [2009] EWHC 1923 (Admin)
Dr Yeong’s GMC registration was suspended for 12 months following a sexual relationship with a former patient. Dr Yeong obtained an expert report from an experienced psychiatrist who assessed that he did not have a psychological disposition to engage in sexual relationships with patients, the likelihood of recurrence was extremely low, and that Dr Yeong did not pose a risk to patients in his professional capacity. On appeal Dr Yeong contended (amongst other things) that the panel applied an incorrect impairment test.
In dismissing the appeal, the Court said:
The question of the possibility of a recurrence of such misconduct by Dr Yeong was a matter of the ordinary assessment of likely human behaviour, in relation to which a psychiatrist’s expertise confers no special privileged insight. The assessment of risk of any particular form of future behaviour is the sort of task which courts and tribunals regularly perform without needing to refer to expert psychiatric evidence.
Importantly, the panel’s view was that the general public interest in clearly marking proper standards of behaviour for doctors in respect of relationships with their patients so as to uphold public confidence in the medical profession was by far the weightiest factor pointing in favour of the finding of impairment of fitness to practise and the sanction which was imposed.
Where a panel considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence.
Zygmunt v General Medical Council [2008] EWHC 2643 (Admin)
Professor Zygmunt appealed the panel’s decision that his fitness to practise was impaired and to impose a 2 month suspension. The allegation against Prof Zygmunt arose out of a wrong diagnosis that the patient suffered from a tumour and not an infected abscess.
The Court noted that even if a panel properly finds that a practitioner has been guilty of misconduct, it may nevertheless conclude that his/her fitness to practise is not impaired. In many, perhaps the great majority of cases, the issue will not be live, but in cases in which it is, it must be separately and appropriately addressed by the panel.
The Court went on to say that it agreed with the decision reached in the Cohen case that when fitness to practise was being considered, the task of the panel is to take account of the misconduct of the practitioner and then to consider in the light of all the other relevant factors known to them whether his or her fitness to practise is (rather than has been) impaired.
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