Bedroom Misconduct = Professional Misconduct In the good old days when Shipman had not screwed up the entire medical profession, the definition used by everyone was Serious Professional Misconduct. For the case law on this aspect, one must review the Shipman Inquiry. Dame Janet did a very good summary of serious professional misconduct. This used to be known as Infamous Conduct in a Professional Respect.
1894, ‘infamous conduct in a professional respect’ had been defined by Lord Justice Lopes in Allinson v General Council of Medical Education and Registration1 in the following terms:
‘If a medical man in the pursuit of his profession has done something with regard to it which will be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council, if that be shown, to say that he has been guilty of infamous conduct in a professional respect.’
Allinson of course went onto create a historical bakery with wonderful bread after he was struck off by the General Medical Council. The GMC has yet to issue him with a pardon.
Anyhow, Isobel Allen's study was to put the cat amongst the pigeons because she lamented that there was no agreed definition.
One of the main problems identified is that there is no commonly understood working definition of 'serious professional misconduct', through which a doctor may be disciplined or struck off the register. This has undoubtedly led to a lack of clarity among GMC members and staff on the criteria, standards and threshold to be applied in reaching a judgment on cases at the different stages of the complaints procedures.
The research also found marked differences in outcome between different GMC committees, and concluded that this lack of consistency was difficult to account for in the absence of clear reasons given for decisions. Much greater transparency had been introduced at the screening stage of the GMC procedures, but there were still inconsistencies which could not be explained.
And there we have it, despite the recommendation there, the General Medical Council did not act upon this. Following the 2004 changes in the Medical Act 1983, the General Medical Council dropped " Serious Professional Misconduct" and inserted "misconduct" at Section 35 of the Medical Act 1983. This has now given the GMC, general powers to assess "misconduct" as any type of conduct that the GMC disapproves of.
After reviewing the authorities, Jackson J. summarized the law as follows:
(1) Mere negligence does not constitute "misconduct" within the meaning of section 35C(2)(a) of the Medical Act 1983. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to "misconduct". (2) A single negligent act or omission is less likely to cross the threshold of "misconduct" than multiple acts or omissions. Nevertheless, and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterized as "misconduct". (3) "Deficient professional performance" within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work. (4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute "deficient professional performance". (5) It is neither necessary nor appropriate to extend the interpretation of "deficient professional performance" in order to encompass matters which constitute "misconduct". Calhaem, R (on the application of) v The General Medical Council [2007] EWHC 2606 (Admin).
The problem with this case law was that in 2009, it was superseded by R v General Medical Council Ex Parte Pal 2009 where misconduct can be any conduct outside the medical profession. Curiously, the General Medical Council touted a special kind of misconduct analysis for this case and most notably on observation, this narrower approach is being applied to foreign doctors. Essentially, it is easier for a foreign doctor to jump the first hurdle because any conduct deemed "misconduct" can engage the procedures. An example of this is a doctor's letter to NCAS which was taken up by the General Medical Council as capable of being "misconduct" [ GMC v Rahman]. By comparison, the case law R v General Medical Council Remedy UK, the General Medical Council argues a higher threshold for Liam Donaldson et al. Essentially, it is more difficult for the GMC to take up a complaint against a Caucasian doctor than it is to take up a case against asian doctors. This is has been discovered recently by analysis of the comparators and the use of two analysis of the word "misconduct".
In Eswaran v General Medical Council, Sedley J stated that the misconduct issue would keep erupting in court if the GMC did not decide what they were doing. These warnings were not heeded. The GMC decided not to do anything.
This also shows the fluctuating used by the General Medical Council to assesses doctors. This raises questions as to whether any doctor facing the General Medical Council is guaranteed Article 6 of the Human Rights Act [ Right to a Fair Trial]. It is certainly true that more foreign doctors are being taken down by the General Medical Council. The uncomfortable personalities for the General Medical Council are intelligent scientists who are forward thinking but who conflict with government policy, whistleblowers and anyone who the General Medical Council takes a dislike to.
The problem with having fluctuating analysis of "misconduct" is that there is inconsistencies in decision making. There is the element of bias where a assessor may have a personal dislike for the doctor and therefore decide to engage a fast tracking of their complaints by using the simpler analysis of misconduct.
The limits of misconduct are yet to be defined. Currently, there are no limits at all. The various analysis of misconduct has not been settled. The GMC can and do use variable tests at present because it falls within the Medical Act 1983. This variable analysis of misconduct will become problematic during appraisals, revalidation etc where frivolous issues may suspend a doctors License thereby requiring months to reach appeal. While all that happens, every doctor in the NHS can be assured that the standards they are judged by will not be uniform, they will be different on a case by case basis. In addition, the standard of proof has dropped from criminal to civil therefore this gives the GMC carte blanch powers over every doctor.
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