Case No: CO/2309/2009

Neutral Citation Number: [2010] EWHC 1245 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/05/2010

Before :

LORD JUSTICE ELIAS

AND
MR JUSTICE KEITH
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Between :

THE QUEEN (on the application of REMEDY UK

LIMITED) Claimant
- and -
THE GENERAL MEDICAL COUNCIL Defendant
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Mr Thomas de la Mare and Mr Tristan Jones (instructed by Leigh Day, Solicitors) for the
Claimant
Mr Robert Englehart QC and Miss Gemma White (instructed by the General Medical
Council) for the Defendant

Hearing date: 11 May 2010

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Judgment
Lord Justice Elias :

1. The General Medical Council (‘the GMC’) exercises a number of functions which are
designed to achieve its statutory objective, defined in section 1 of the Medical Act
1983 as being:

“to protect, promote and maintain the health and safety of the
public.”

2. These functions include taking disciplinary action against members of the medical
profession in certain defined circumstances where their fitness to practise is in
question. This case raises an issue as to the limits of its disciplinary jurisdiction.

3. As part of a policy called “Modernising Medical Careers”, the Department of Health

and others devised and introduced a new scheme for recruitment of junior doctors,
and a new computerised system of making appointments for junior doctors’ training
posts. The recruitment scheme was termed “Specialty Selection and Recruitment”
(‘SSR’), and the appointments scheme “The Medical Training Appointments System”
(‘MTAS’).

4. It is now generally recognised that MTAS was a deeply flawed scheme. It was
comprehensively examined in a number of public investigations, including by the
House of Commons Health Select Committee, a Department of Health investigation
chaired by Professor Neil Douglas, and an independent enquiry chaired by Professor
Sir John Tooke. The Select Committee Report referred to the introduction of the new
specialty training arrangements as “disastrous”. The Douglas Report said that the
introduction of MTAS had:

“sparked the biggest crisis in the medical profession in a

generation”, and in a legal challenge to the modification of the
MTAS scheme brought before Goldring J (R (on the
application of Legal Remedy UK Limited) v Secretary of State
for Health) [2007] EWHC 1252 (Admin), 96 BMLR 191) the
judge dismissed the application but observed that:

“The premature introduction of MTAS has had disastrous

consequences.”

5. The claimant is a company limited by guarantee. It was founded to represent doctors

who had lost confidence in these training and employment reforms. It campaigns on a
wide range of medical and professional issues affecting doctors, especially junior
doctors. As part of its campaign, it is seeking to subject the Chief Medical Officer for
England, Sir Liam Donaldson, who occupies a senior executive position at the
Department of Health, and Professor Sarah Thomas, who chaired the MTAS
recruitment and selection steering group, to the GMC’s disciplinary processes. By
this means it is seeking to hold them accountable for what the claimant perceives to
be their responsibility in allowing the MTAS scheme to be adopted and implemented
in circumstances which have caused damage to doctors, patients and the standing of
the profession.
6. The claimant’s solicitors’ detailed letter of complaint to the GMC was in the
following terms:

“We are instructed on behalf of RemedyUK and are writing to

request that these two doctors be investigated for their role as
managers integrally involved in the introduction of [MTAS and
SSR] ….. We believe that their professional and managerial
actions and conduct in relation to SSR/MTAS fell seriously
below the high standards that are expected by the profession, as
laid out in ‘Management for Doctors’ and elsewhere. Their
deficient performance, and their failure to meet the published
GMC Guidance for Doctors in management roles, was so
significant that their actions amount to misconduct and/or
deficient professional performance; we therefore submit that
their fitness to practice in this managerial field of work is
impaired under section 35C of the Medical Act 1983.”

7. Under the heading “Basis of the complaint” the letter described what it perceived as
being the principal failings of the SSR/MTAS systems as follows:

“Our specific complaints in relation to SSR/MTAS relate to:

the unfitness for purpose of both the computer system and the
shortlisting and interviewing system; the lack of piloting and
the decision to proceed before it had been shown to be fit for
purpose; and the failure to adequately heed or address the risks
that were identified in advance. The consequential impact on
individual doctors and their patients and on the medical
community has been substantial.”

8. The letter then identifies what it asserts have been the adverse consequences for
patients, junior doctors, and the NHS finances. As to the impact on doctors, it
referred to a study conducted by the Dean of the Royal College of Psychiatrists who
carried out a survey of some 790 junior doctors and found that they showed an
increased risk of suicide and other psychiatric morbidity resulting from stress, and
that the loss of morale may well have adversely affected patient care. It was also
alleged that the insistence on introducing a defective system had undermined the
standing of the profession and had led to a loss of credibility and authority.

9. Sir Liam Donaldson and Dr Thomas were specifically identified because it was
alleged that as medical practitioners they bore the greatest degree of responsibility for
the design and implementation of SSR/MTAS. Sir Liam Donaldson was criticised in
particular because he had ultimate responsibility for the design and delivery of MMC.
In addition it was said that he had ignored clear warnings to delay the implementation
of MTAS because of the problems it would create. Professor Thomas was chosen
because she was chair of the key steering group concerning recruitment and training
which had been responsible in particular for developing the rules for handling
applications; also she had attended all the high-level decision making committees
when, it is alleged, the decision ought to have been made to stop -or at least delay -
the implementation of the MTAS system.
10. Finally, the complaint letter referred to GMC guidance entitled “Management for
Doctors” and identified certain areas of good practice identified in that guidance
which had allegedly been breached.

11. By a letter dated 12 December 2008 the Registrar of the GMC determined not to refer
the claimant’s allegations to case examiners for further investigation. The reasons
given were as follows:

“Section 35C is concerned with allegations that a registered

medical practitioner’s fitness to practice is impaired. It is only
‘misconduct’ or ‘deficient professional performance’ material
to a practitioner’s fitness to practice that can fall within section
35C(2): see, for example, Calhaem v General Medical Council
[2007] EWHC 2606 at [26]. Bearing that in mind, I have
concluded that your allegations against Sir Liam Donaldson
and Dr Thomas do not fall within section 35C(2) and that,
accordingly, I should not refer them to case examiners.

You suggest in your letter that there is here a case of either or

both of ‘deficient professional performance’ and ‘misconduct’.
I address each of these concepts in turn.

Deficient professional performance

Deficient professional performance was first introduced into

the Medical Act 1983 by the Medical (Professional
Performance) Act 1995. It was introduced to fill a perceived
lacuna in the 1983 Act. There have subsequently been changes
of terminology. However, it is plain on the authorities, and on
the statutory scheme (see, for example, the provisions about
performance assessments), that section 35C(2) is concerned
with deficient performance in a clinical setting. I do not
consider that allegations such as you make, which have nothing
to do with practice of medicine by Sir Liam Donaldson or Dr
Thomas, can sensibly be said to fall within section 35C(2).

Misconduct

Your letter has assembled a large number of selected quotations

about the perceived deficiencies of MTAS and its
implementation. It is, nevertheless, non-specific about the
actual conduct of, respectively, Sir Liam Donaldson and Dr
Thomas that is said to have constituted misconduct by them as
individuals. But, irrespective of that feature, I have concluded
that your letter does not make allegations that would fall within
section 35C(2)(a) of the 1983 Act. That sub-section is directed
at conduct material to a practitioner’s fitness to practise.
Whatever the conduct of Sir Liam Donaldson and Dr Thomas
with regard to MTAS, I do not consider that it can sensibly be
said to impinge on their fitness to practice as medical
practitioners. ”
12. The Registrar added that the management guidance was concerned with the role of
those in managerial positions connected with the provision of medical services to
patients within the NHS or elsewhere. It did not apply to the situation of these two
doctors because they were not exercising functions in a clinical setting, and therefore
their actions had no bearing on their fitness to practise.

13. There is a dispute between the parties as to whether the allegations of misconduct are
sufficiently specific or not. I will return to that issue later in this judgment, but it is
not the central issue in the case. The Registrar has taken the view that even if the
allegations were sufficiently specific, they would still not fall within the terms of
section 35C(2). The issue of principle is whether the Registrar was right in so holding.
That is the principal issue raised in this application for judicial review.

The legal framework.

14. Section 35C of the 1983 Act applies where an allegation is made to the GMC against
a registered person that his or her fitness to practise medicine is impaired. Section
35C(2) is as follows:

“A person’s fitness to practise shall be regarded as ‘impaired’

for the purposes of this Act by reason only of –

(a) misconduct;

(b) deficient professional performance;

(c) a conviction or caution in the British Islands for a criminal

offence, or a conviction elsewhere for an offence which, if
committed in England and Wales, would constitute a criminal
offence;

(d) adverse physical or mental health; or

(e) a determination by a body in the United Kingdom

responsible under any enactment for the regulation of a health
or social care profession to the effect that his fitness to practise
as a member of that profession is impaired, or a determination
by a regulatory body elsewhere to the same effect.”

15. This particular formulation was the result of an amendment to the 1983 Act taking
effect in November 2004. However, it is common ground that the concept of
misconduct is the same as the term “serious professional misconduct” found in the
earlier legislation. So authorities under the original legislation are still applicable to
the current rules.

16. The concept of deficient performance was introduced by the Medical (Professional
Performance) Act 1995. Until then the power to take action in relation to a person’s
registration was limited to cases of serious professional misconduct, the commission
of criminal offences or serious impairment of fitness to practise by reason of ill
health. Whilst some acts of incompetence could be brought within the scope of
misconduct, not all could. The 1995 Act was intended to fill that lacuna, as the
 Registrar made clear in her decision in this case. In fact as initially drafted, the focus
of this provision was not on competence as such but rather on the related but distinct
concept of “past professional performance”, as the Privy Council pointed out in
Krippendorf v General Medical Council [2001] 1 WLR 1054. As the facts of that case
demonstrated, this could sometimes cause difficulties in effectively regulating lack of
competence. However, there is now a definition of professional performance in
section 55 of the 1983 Act which states that it “includes a medical practitioner’s
professional competence.” It appears, therefore, that all aspects of competence may
now be the subject of investigation in the fitness to practise procedures.

The procedure.

17. Under Section 35C(4) of the Act an investigation committee first considers the
allegation and decides whether it should be considered by a fitness to practise panel.
However, rules may make provision for the Registrar and others to exercise functions
for which the investigation committee is responsible. Such rules have been made
pursuant to section 35CC of the Act and are contained in the General Medical Council
(Fitness to Practise) Rules 2004/2608 (‘the 2004 Rules’).

18. Rule 4 of those Rules provides as follows:

“(1) An allegation shall initially be considered by the

Registrar.

(2) Subject to paragraph (5) and rule 5, where the Registrar

considers that the allegation falls within section 35C(2) of
the Act, he shall refer the matter to a medical and a lay Case
Examiner for consideration under rule 8.”

19. Rule 4(3) makes clear what is implicit in rule 4(2), namely that if the Registrar does
not consider that the case falls within section 35C(2), he or she should not send it any
further and the complaint comes to an end. The Registrar must then notify the
practitioner concerned and the complainant.

20. The role of the Registrar at the initial stage was succinctly described by Collins J in
Rita Pal v GMC [2009] EWHC 1061 (Admin), a misconduct case, when he said (para
45) that the question is:

“whether the allegation is capable of producing a finding of

misconduct.”

The same test would apply to deficient performance cases.

21. Where the Registrar considers that the complaint should go further, he must refer the
matter to the case examiners and should as soon as is 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).

22. The sanctions which may ultimately be imposed are set out in section 35D(2):
 “Where the Panel find that the person’s fitness to practise is
impaired they may, if they think fit –

(a) except in a health case, direct that the person’s name shall
be erased from the register;

(b) direct that his registration in the register shall be suspended

(that is to say, shall not have effect) during such period not
exceeding twelve months as may be specified in the direction;
or

(c) direct that his registration shall be conditional on his

compliance, during such period not exceeding three years as
may be specified in the direction, with such requirements so
specified as the Panel think fit to impose for the protection of
members of the public or in his interests.”

The authorities.
23. In the course of argument we were referred to a number of authorities which have
considered the scope of the concepts of misconduct and deficient professional
performance.

24. We were referred by the parties to four cases in particular. The leading case on the
meaning of misconduct is the judgment of the Privy Council in Roylance v GMC
[2000] 1 AC 311. Disciplinary proceedings were taken against a consultant
radiologist who was the chief executive officer of an NHS Trust. The doctor had been
made aware on a number of occasions of concerns at the high death rate resulting
from operations carried out on young children at a particular hospital by two
paediatric surgeons. He was found guilty of professional misconduct on the grounds
that he should have taken action to investigate these concerns, and in one particular
case it was found that he ought to have taken steps to prevent a particular operation
from proceeding. One of his grounds of appeal was that he was not a specialist
paediatrician and that any failings as chief executive officer could not constitute
relevant misconduct within the meaning of section 35C.

25. Lord Clyde, giving the judgment of the Privy Council, sought to give guidance as to
what might amount to serious professional misconduct, whilst emphasising that no
exhaustive definition could be provided. He noted that misconduct “is a word of
general effect, involving some act or omission which falls short of what would be
proper in the circumstances.” He then gave examples of cases where the misconduct
might occur in the course of practising as a doctor. He agreed with the GMC that
such professional misconduct was not limited to clinical misconduct (p.331):

“In the present case the critical issue is whether, if there was misconduct, the
misconduct was ‘professional misconduct.’ As counsel for the General Medical
Council pointed out it is not simply clinical misconduct which is in issue.
Professional misconduct extends further than that. So it is not simply misconduct
in the carrying out of medical work which may qualify as professional
misconduct. But there must be a link with the profession of medicine. Precisely
what that link may be and how it may occur is a matter of circumstances. The
closest link is where the practitioner is actually engaged on his practice with a
 patient. Cases here may occur of a serious failure to meet the necessary standards
of practice, such as gross neglect of patients or culpable carelessness in their
treatment, or the taking advantage of a professional relationship for personal
gratification.

But certain behaviour may constitute professional misconduct even although it

does not occur within the actual course of the carrying on of the person’s
professional practice, such as the abuse of a patient’s confidence or the making of
some dishonest private financial gain. In Allinson v. General Council of Medical
Education and Registration [1894] 1 Q.B. 750, 761, infamous conduct in a
professional respect was held to be established where a doctor by public
advertisement had warned the public to avoid other practitioners and
recommended them to apply to himself. Lord Esher M.R. adopted, at pp. 760-
761, the definition which Lopes L.J. propounded in the same case of ‘at any rate
one kind of conduct amounting to “infamous conduct in a professional respect.’”
The definition was that such conduct could be established:

‘If it is shown that a medical man, in the pursuit of his profession,

has done something with regard to it which would be reasonably regarded
as disgraceful or dishonourable by his professional brethren of good repute
and competency … ’”

26. His Lordship then identified another category of case where the professional
misconduct complained about is removed altogether from the practice of medicine.
This will occur where the doctor is guilty of immoral, outrageous or disgraceful
conduct. An example is where the doctor has committed sexual abuse in
circumstances not involving a patient, such as occurred in A County Council v W
(Disclosure) [1997] 1 FLR 574. Such conduct may reflect adversely on the medical
profession and raise issues as to the doctor’s fitness to practise. Even conduct falling
short of moral turpitude might suffice, such as reprehensible conduct which becomes
more serious, and may be described as disgraceful conduct, when it reflects on
professional obligations and brings the profession into disrepute.

27. Lord Clyde gave the example drawn from Marten v Royal College of Veterinary
Surgeons Disciplinary Committee [1966] 1 QB 1 where a farmer, who was also a
veterinary surgeon, was found to have failed adequately to care for his animals. He
was found guilty of professional misconduct. Lord Parker CJ said this:

“..if the conduct, though reprehensible in anyone is in the case

of the professional man so much more reprehensible as to be
defined as disgraceful, it may, depending on the circumstances,
amount to conduct disgraceful of him in a professional respect
in the sense that it tends to bring disgrace on the profession
which he practises.”

28. Lord Clyde recognised that on the facts of Roylance itself the conduct of the doctor
was not such as to constitute moral turpitude, nor did it bring the profession into
disrepute. So was it linked to the profession of medicine? The Privy Council held that
 it was. It was no answer for the doctor to say that he was acting as an administrator
rather than in a medical capacity. He did not discard his duty as a registered medical
practitioner when he undertook the duties of chief executive; he had at all times to
have regard for patient care (p.333):

“He was both a registered medical practitioner and chief

executive of a hospital. In each capacity he had a duty to care
for the safety and well-being of the patients. As chief executive
that duty arose out of his holding of that appointment. As a
registered medical practitioner he had the general obligation to
care for the sick. That duty did not disappear when he took on
the appointment but continued to co-exist with it. There was a
sufficiently close link with the profession of medicine in the
case of the doctor as chief executive of a hospital in respect of
patients at the hospital.”

29. The court found that the GMC was entitled to find that serious medical misconduct was
established on the facts of that case.

30. The second case is Meadow v GMC [2007] QB 462. Professor Meadow had given
evidence as an expert witness at the trial of a defendant who was charged with, and
later convicted of, the murder of her two children. Her defence was that they were both
cot deaths. The doctor sought to express an opinion before the jury about the statistical
chances of two cot deaths occurring in one family, which he thought would be unlikely
in the extreme. The evidence was highly pertinent to the case but was fundamentally
misconceived; the doctor had misunderstood the significance of the statistics. The
GMC’s Fitness to Practise Panel found that although the doctor had acted in good faith,
his error constituted serious professional misconduct and they ordered his name to be
erased from the register.

31. The Court of Appeal held by a majority (Auld and Thorpe LJJ; Sir Anthony Clarke MR
dissenting) that on the facts, although there was misconduct, it was not serious
professional misconduct. In any event, as all members of the court accepted, the
sanction of erasure would have been inappropriate, as indeed the GMC conceded at the
appeal. The members of the court made certain observations about the scope of the
misconduct allegation. Sir Anthony Clarke MR said this (para 38):

“…nobody suggested before the panel that it adopted the wrong

procedure or that it lacked jurisdiction. Equally nobody
suggested that the FPP could not investigate the question
whether Professor Meadow was guilty of serious professional
misconduct because the alleged misconduct occurred in
connection with evidence prepared and given in court and did
not arise out of a clinical or doctor and patient relationship.
This is scarcely surprising since there is ample authority for the
proposition that a professional may face FTP proceedings, not
just for conduct strictly within his professional capacity, but
also for conduct in his private capacity: see e g A County
Council v W (Disclosure) [1997] 1 FLR 574, approved by the
 Privy Council in Roylance v General Medical Council (No 2)
[2000] 1 AC 311, 322. In any event this is of course a case in
which the allegations related to conduct within Professor
Meadow’s professional capacity.”

32. Auld LJ (paras 200-201) also emphasised that the concept of professional misconduct is
not limited to misconduct in clinical practice:

“As Lord Clyde noted in Roylance v General Medical Council

(No 2) [2000] 1 AC 311, 330-332, ‘serious professional
misconduct’ is not statutorily defined and is not capable of
precise description or delimitation. It may include not only
misconduct by a doctor in his clinical practice, but misconduct
in the exercise, or professed exercise, of his medical calling in
other contexts, such as that here in the giving of expert medical
evidence before a court. As Lord Clyde might have
encapsulated his discussion of the matter in Roylance v General
Medical Council (No 2), it must be linked to the practice of
medicine or conduct that otherwise brings the profession into
disrepute, and it must be serious. As to seriousness, Collins J,
in Nandi v General Medical Council [2004] EWHC 2317
(Admin) at [31], rightly emphasised the need to give it proper
weight, observing that in other contexts it has been referred to
as ‘conduct which would be regarded as deplorable by fellow
practitioners’.

It is also common ground that serious professional misconduct

for this purpose may take the form, not only of acts of bad faith
or other moral turpitude, but also of incompetence or
negligence of a high degree: see Preiss v General Dental
Council [2001] 1 WLR 1926, para 28. It may also be
professional misconduct where, as here, a medical practitioner,
purporting to act or speak in such expert capacity, goes outside
his expertise.”

33. The reference to the Preiss case is to the following observation of Lord Cooke of
Thorndon, giving the judgment of the Privy Council:

“It is settled that serious professional misconduct does not require moral
turpitude. Gross professional negligence can fall within it. Something
more is required than a degree of negligence enough to give rise to civil
liability but not calling for the degree of opprobrium that inevitably attaches
to the disciplinary offence.”

34. In this case Auld LJ considered that the error was perpetrated in the exercise of
Professor Meadow’s medical calling. As the judge put it: “as an expert, he should know
his limits.”
35. Krippendorf, to which I have already referred, is a Privy Council decision concerning
deficient performance rather than misconduct. The court approved the following
definition, whilst emphasising that it was not exhaustive, contained in a booklet which
the GMC itself published (I modify the original in the manner indicated by the Court
itself):

“Seriously deficient performance is……‘a departure from good

professional practice, whether or not it is covered by specific
GMC guidance, sufficiently serious to call into question a
doctor’s registration.’ This means that we will question your
registration if we believe that you have been, repeatedly or
persistently, not meeting the professional standards appropriate
to the work you have been doing – especially if you might be
putting patients at risk.”

36. The final case is Sadler v GMC [2003] UKPC 59; [2003] 1 WLR 2259 which also
involved seriously deficient performance rather than serious professional misconduct.
The relevance of the case in this context is the observation by Lord Walker of
Gestingthorpe, giving the judgment of the Judicial Committee, as to the circumstances
where seriously deficient performance might occur. He said this (para 63):

“Seriously deficient performance ….can extend to such matters

as poor record-keeping, poor maintenance of professional
obligations of confidentiality, or even deficiencies (if serious
and persistent) in consideration and courtesy towards patients.
It does not depend on proof of causation of actionable loss.”

Since grossly deficient performance may amount to serious professional misconduct,

it follows that errors of this nature may also, in an appropriate case, justify a finding
of serious professional misconduct.

37. I would derive the following principles from these cases:

(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.
The submissions.

38. The claimant submits that the alleged wrongdoing in this case is in principle capable of
falling within both section 35C(2)(a) and (b). The claimant accepts that the fitness to
practise must concern the fitness to practise as a medical practitioner but submits that
both authority and principle support the proposition that the alleged wrongdoing in this
case, if proved, would fall into that category.

39. As to misconduct, the claimant says that the two doctors are capable of being found to
have committed misconduct falling within each of the two limbs identified above. First,
they are potentially guilty of serious professional misconduct in the exercise of their
medical calling. “Fitness to practise” is put in issue where a doctor commits
sufficiently grave misconduct with respect to any aspect involving the use of his
medical skills. As both Sadler and Meadow show, it is not limited to clinical practice.
The interested parties only held the posts they did because of their medical knowledge
or medical skill and, like the doctor in Roylance, they were obliged to have regard to
patient care when adopting appropriate training arrangements for junior doctors.

40. Sir Liam Donaldson and Dr Thomas were very senior administrators; it would be
wholly wrong that that fact should place them beyond the scrutiny of the GMC fitness
to practise panel. On the contrary, their seniority makes it all the more important that
they should be held properly accountable for their actions. As Roylance makes clear,
there is no bridge which separates their administrative and medical roles. These two
doctors were no further removed from a clinical setting than the doctor in the Roylance
case, or than was Professor Meadow.

41. The claimant points to the fact that GMC publications themselves identify all sorts of
non-clinical functions which doctors may carry out in the course of their professional
practice. These may include training, education or administration. If a doctor
undertakes any of these functions and performs them in a seriously deficient way, or
otherwise misconducts himself or herself in the course of carrying them out, that will
relate to his or her fitness to practise. It will not necessarily impinge on their fitness to
practise in a clinical context, but the Registrar made a fundamental error in seeking to
equate fitness to practise with clinical functions.

42. Mr de la Mare, counsel for the claimant, accepts that in a case where clinical practice is
apparently unaffected, it may well be inappropriate to stop the doctor from continuing
in clinical practice by erasing him or her from the register, but that goes to the
appropriate penalty rather than to the principle of whether proceedings can be taken at
all. Such a case would in principle justify the GMC imposing, in a case like the
Meadow case, for example, a condition that the doctor should not be involved in
medico legal work.

43. Mr de la Mare contends that the two doctors also fall within the second category of
misconduct identified above, namely that they have by their wrongdoing brought the
profession of medicine into disrepute. He submits that this is enough to constitute
serious professional misconduct; it is not necessary to establish as an independent
element that this affected their fitness to practise. One of the public interests which the
GMC is required to protect is the reputation of the profession. If a doctor undermines or
jeopardises that reputation, then by definition he or she is not fit to practise as a medical
doctor. Such cases are not limited to situations where the doctor’s conduct is immoral
 or dishonourable. Any misconduct which has that adverse effect on the reputation of
the profession will fall within the scope of the definition.

44. In this case the objective evidence that the profession was severely damaged by the
introduction of MTAS is, he submits, overwhelming. In addition, the damage to the
morale of junior doctors directly impacted on patient care. Accordingly, if the Fitness
to Practise Panel were to find that there was incompetence of sufficient gravity to
constitute misconduct, the only proper finding is that it relates to fitness to practise and
falls within the scope of section 35C(2)(a).

45. The GMC accepts that Roylance shows that administration cannot in all cases be
divorced from medical care and that the obligations of a doctor may co-exist with the
duties of an administrator. Roylance and Meadow together confirm that failings
unconnected with the personal treatment of patients might, in an appropriate case,
amount to misconduct going to fitness to practise as a doctor.

46. However, Roylance itself was a case where the doctor remained under a direct
obligation to protect the patients under his care at the hospital; he ought to have
exercised his own medical skill and knowledge to take action to protect patients from
harm. It was the inability to take that step which caused harm to patients and amounted
to serious professional misconduct. That is far removed from the alleged wrongdoing
here which was wholly divorced from a clinical setting and did not affect even
indirectly the care of any specific patients.

47. Similarly Meadow does not support the claimant’s case. In that case the doctor
concerned had committed an act of negligence in giving the cloak of professional
authority to opinions which were in fact outside his field of expertise altogether. In
both Roylance and Meadow the particular skills of the doctor were directly engaged,
albeit that neither was acting in a clinical context.

48. By contrast, here the two doctors were involved in the functions of government and
their medical skills were only indirectly and peripherally relevant to the functions they
were performing. To use Lord Clyde’s words, there was no sufficiently close link
between what they were doing and the profession of medicine. The fact that their
medical knowledge and experience might in a general way assist them in the
performance of their tasks was insufficient to justify the conclusion that they were
exercising the skills of their profession. Administrative tasks will properly fall within
the scope of professional practice where they are the kind of day to day tasks which are
closely connected to clinical practice, as the Sadler case makes clear, but that is not the
kind of administrative act or acts under scrutiny here.

Conclusion.

49. I agree with the GMC’s submissions. I accept that there is not a clear line mapping the
boundary between conduct which is capable of rendering a doctor unfit to practise and
conduct which is not. However, in my judgment, the allegations made here fall clearly
into the latter category.

50. Plainly, as the authorities show, the concept of fitness to practise is not limited to
clinical practice alone but may extend to other aspects of a doctor’s calling. I see no
reason why a doctor who is seriously deficient in research, or who engages in teaching
 students and does so in a seriously incompetent manner could not properly be subject to
the fitness to practise procedures for those failings, whether via the conduct or deficient
performance route. The sanction would not necessarily be erasure from the register, but
a condition might be imposed, for example, prohibiting a person from teaching for a
period.

51. However, in all these examples the doctor is exercising functions which are part of his
medical calling or, to put it another way, sufficiently closely linked to the practice of
medicine. I do not consider that the administrative functions being exercised by these
two doctors in this particular case can properly be so described. Their medical skills
and experience may fit them better for the nature of the tasks they are required to
undertake, but the essential skills they bring to bear are not medical. The making and
implementation of government health policy is not a medical function, even where the
policies in issue directly relate to doctors and closely affect the medical profession.

52. I accept the submissions of Mr Englehart QC, counsel for the GMC, that it would be
quite inappropriate for the GMC to assess the performance of the doctors in that sphere.
Specialist medical skills are not the appropriate tools with which to assess such
performance. Under the rules medical assessors may in an appropriate case be
appointed to assess performance, but they will have the requisite special skills to pass
the appropriate judgment. I do not believe that any proper or reliable assessment could
be made here. The fact that the committees on which Sir Liam Donaldson and Dr
Thomas serve also include administrators with no medical background is indicative of
the fact that they are not operating in the traditional professional sphere. That is not, of
course, to say that these doctors should not be accountable for their actions, or even that
it would necessarily be wrong or inappropriate for the GMC to make representations as
to their suitability to remain in post. But in my judgment, they cannot be held
accountable in the manner the claimant seeks, that is through the GMC’s fitness to
practise procedures. The functions being exercised here are too remote from the
profession of medicine to bring them within the scope of section 35C(2).

53. This is an answer both to the misconduct charge falling under what I have termed the
first limb, and the deficient performance allegation. They both relate to fitness to
practise as a medical practitioner, and they both require an assessment of actions taken
in the course of medical (but not limited to clinical) practice.

54. As to the second limb of the misconduct complaint, I reject Mr de la Mare’s central
submission that whenever the profession is brought into disrepute, or at least arguably
so, that of itself is capable of rendering any conduct which causes that consequence to
constitute misconduct within the meaning of subsection (a).

55. As I have indicated above, in my judgment the authorities establish that the conduct
must be of a kind which justifies some kind of moral censure or involve conduct which
would be considered disreputable for a doctor. It is not alleged here that there was any
act of bad faith, nor in my view could it sensibly be asserted (and I do not think that it
was) that that the conduct of which complaint was made was itself in any sense
disreputable.

56. Bad judgment does not justify moral censure, particularly where it is the decision of a
committee of which the alleged wrongdoer is only one participant. Accordingly, in my
judgment this limb of the misconduct definition is inapplicable, even if it could be
 shown that the particular conduct alleged caused damage to the standing of the
profession.

57. In my judgment, therefore, the Registrar was correct in not sending this complaint
further. I accept that he may have adopted too limited a view of the jurisdiction of the
Fitness to Practise panel if, when he said that the performance alleged to be deficient
had to occur in a clinical setting, he was intending to exclude areas of professional
practise which have no direct connection with patient care. However, he was right to
hold that the conduct complained of was too remote from consideration of fitness to
practise. In my judgment that is so whether cast in misconduct or deficient
performance terms.

58. Strictly it is unnecessary to consider whether he was also justified in expressing the
view that the misconduct claims were insufficiently specific as to the nature of the
misconduct alleged. I would not have been minded to uphold this part of the Registrar’s
decision. I think that the basic complaints are clear and in any event he could have
asked for further particulars.

59. Mr Englehart submits that the nature of the complaint as currently drafted makes it
quite impossible for the Registrar to formulate allegations bearing upon fitness to
practise. I see the force of that but only because the nature of the allegations do not
sufficiently relate to fitness to practise, not because they are insufficiently
particularised. So whilst the vague and ill-defined nature of the current allegations lend
some support to Mr Englehart’s primary submission that these allegations are not
sufficiently connected with the question of fitness to practise, their lack of specificity
does not in my judgment constitute an independent basis for screening out the
complaints at this stage.

60. However, for the reasons I have given, this application fails.

Mr Justice Keith:

61. I agree.