‘Misconduct’ in GMC Cases

‘Misconduct’ in GMC and MPTS Cases – Definitions.

A definition of ‘misconduct’ is not set out in the Medical Act 1983 (the principle primary legislation that governs the GMC and MPTS). As a consequence, various appeal courts have been asked to set out their opinions on the scope of the definition of professional ‘misconduct’. (Note that there is often a separate procedure where a criminal offence has been committed.)

Prior to the Medical Act 1983 being amended, a doctor could only be found to have conducted misconduct if the act or omissions could be defined as ‘serious professional misconduct‘. The amendment to the Act removed the word ‘serious’ from the statute.

It is not clear to this author why that was the case. It seems strikingly obvious that a regulator (such as the GMC) should only get involved where misconduct is considered to be serious, or, even if minor in nature, if it is persistent enough to be described as serious misconduct.

Indeed, regulatory case law has held that misconduct must be serious if regulatory disciplinary action is to be justified. See: Cheatle v GMC [2009] EWHC 645 (Admin); Mallon v General Medical Council [2007] ScotCS CSIH_17, and Remedy (see below). The appeal courts (tasked with adjudicating on disputes between doctors and the GMC on the scope of the definition) have held that conduct (whether by act or omission) must still be ‘serious’ if it is to be held fall within the definiton of misconduct, as set out in the Medical Act 1983.

It is obvious to state that certain doctors misbehave or fail to uphold professional standards, in a number of ways, some commonplace and frequently occurring, some unique and novel or even sinister. A narrow definition of ‘misconduct‘ might therefore lead to an unsafe situation whereby certain types of conduct would not be caught by the Medical Act – conduct that right-minded people would say should be caught by the Act. Alteratively, to broad a definition might catch conduct that right-minded people would consider should never fall within the definition of ‘misconduct’.

For these reasons there will be borderline cases where it is difficult to detetmine which side of the line the conduct falls.

Is it misconduct or not?

Not an easy question to answer in some cases. However, there are obvious examples of misconduct: theft, gross negligence manslaughter, indecent touching during a PV or PR examination, serious failures in the workplace (whether medical or managerial), improper conduct in one’s private life (for example domestic violence, using one’s registration for improper purposes), dishonesty, drug taking, abusive language in the workplace, faking CV work histories, harassment, not working to protocol. The list goes on.

But does a doctor commit misconduct if they make an error as a trustee of a charity, wholly unrelated to their practise of medicine, by way of example. The answer is not clear-cut and will be dependent on a number of variables. What if a doctor swears at a passenger on a bus, who accidentally bumps into the doctor on the way home from work, will they be held accountable by the GMC. Or, what if a doctor puts together a recruitment system that ultimately is found to be a failure in operation. There is some case law that assists us to understand the regulatory position of such a scenario, to some extent, such as: Remedy UK Ltd, R (on the application of) v The General Medical Council [2010] EWHC 1245 (Admin) (28 May 2010). In that case a number of doctors brought an appeal against the GMC for closing a case against other doctors who had been involved in setting up a recruitment scheme for junior doctors, that eventually was said to be a failure.

The appeal judge that determined the issues in the Remedy case stated:

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.

Therefore, conduct that is not ‘sufficiently closely linked to the practice of medicine‘ could fall outside of the scope of GMC inquiry.

In Nandi v General Medical Council [2004] EWHC 2317 (Admin) the court described misconduct as ‘deplorable’ conduct:

31. What amounts to professional misconduct has been considered by the Privy Council in a number of cases. I suppose perhaps the most recent observation is that of Lord Clyde in Rylands v General Medical Council [1999] Lloyd’s Rep Med 139 at 149, where he described it as “a falling short by omission or commission of the standards of conduct expected among medical practitioners, and such falling short must be serious”. The adjective “serious” must be given its proper weight, and in other contexts there has been reference to conduct which would be regarded as deplorable by fellow practitioners. It is of course possible for negligent conduct to amount to serious professional misconduct, but the negligence must be to a high degree. (Per Mr Justice Collins,  October 2004)

In Roylance v. The General Medical Council (Medical Act 1983) [1999] UKPC 3 the Privy Council determined that:

38. Serious professional misconduct is presented as a distinct matter from a conviction in the British Islands of a criminal offence, which is dealt with as a separate basis for a direction by the committee in section 36(1) of the Medical Act 1983. Analysis of what is essentially a single concept requires to be undertaken with caution, but it may be useful at least to recognise the elements which the respective words contribute to it. Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word “professional” which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word “serious”. It is not any professional misconduct which will qualify. The professional misconduct must be serious. The whole matter was summarised in the context of serious professional misconduct on the part of a registered dentist by Lord Mackay of Clashfern in Doughty v. General Dental Council [1988] A.C. 164 at 173:-

“In the light of these considerations in their Lordships’ view what is now required is that the General Dental Council should establish conduct connected with his profession in which the dentist concerned has fallen short, by omission or commission, of the standards of conduct expected among dentists and that such falling short as is established should be serious. On an appeal to this Board, the Board has the responsibility of deciding whether the committee were entitled to take the view that the evidence established that there had been a falling short of these standards and also entitled to take the view that such falling short as was established was serious.”

(19th January, 1999)

Further, also in Remedy UK Ltd, R (on the application of) v The General Medical Council [2010] EWHC 1245 (Admin), Mr Justice Elias stated;

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.

(28 May 2010)

The GMC’s Approach

The GMC holds that a medical doctor has a responsibility under the code of conduct (Good Medical Practice) to act professionally and appropriately in both their working and private life. Whether the GMC will proceed with an investigation into a doctor’s conduct outside of the workplace is therefore one based on the degree of failure of the doctor to live up to the code (GMP) and the general conduct and demeanor of the doctor, more widely.

If a doctor were to swear expletives and vulgarities all of the time then a number of occasions might lead to a finding that the doctor acted in a manner that constitutes professional misconduct that is also considered to be serious enough to engage the fitness to practise process.

On our case law pages we have summarised some relevant case law on the definition and scope of the statutory definition of the word ‘misconduct’, in GMC and MPTS proceedings.

See also the GMC’s procedure for undertaking an investigation into a doctor’s conduct: GMC Investigations

If you are a doctor in need of guidance on the subject of misconduct and its scope, do give us a call in strict confidence on 0800 10 88 739 or use our Contact Form.