BMJ  2005;330:103-104 (15 January), doi:10.1136/bmj.330.7483.103

Editorial

Referring GMC decisions to the High Court

Acquittal by the GMC is not necessarily an end to a doctor's case

The General Medical Council has recently come under serious scrutiny, especially after the publication of the report by Dame Janet Smith (see BMJ 1 Jan 2005, p 10). Among its many duties, the GMC also decides if a doctor is guilty of serious professional misconduct. However, acquittal by the GMC does not mean that the case cannot be referred to the High Court. In October 2004, the Court of Appeal ruled that a doctor who had been cleared of serious professional misconduct by the GMC could still be referred to the High Court by the regulatory watchdog, the Council for Healthcare Regulatory Excellence (CHRE). In one fell swoop, professional regulation has been radically and disturbingly transformed. Doctors now stand in double jeopardy.

Disciplinary tribunals against doctors (and other healthcare professionals) share commonalities with criminal law in terms of the required standard of proof (beyond reasonable doubt), and the procedure followed during a hearing. Furthermore, the prosecution has had "one bite at the cherry" to prove serious professional misconduct. Where a doctor was acquitted, that was the end of the matter. This has now altered irrevocably. The CHRE is entitled to refer to the High Court any relevant decision of an adjudication panel of the GMC (or other regulatory body falling within its remit), including a finding of not guilty of serious professional misconduct, if it considers that decision to be too lenient.

In Ruscillo¹ a general practitioner appeared before the GMC after an alleged improper relationship with a female patient. After carefully considering the evidence put before them, the professional conduct committee of the GMC acquitted him of serious professional misconduct. The CHRE referred this decision to the High Court on the grounds that it was unduly lenient and founded its right to do so on the basis of its understanding of its powers pursuant to section 29 of the National Health Service Reform and Health Care Professions Act 2002. Section 29 enables relevant decisions to be referred where the CHRE considers that these have been unduly favourable to practitioners. The purpose of this provision is to address public concern that at times too much regard might be paid to the profession and its members in the process of self regulation. Dr Ruscillo argued that section 29 applied only to a sanction imposed after a finding of misconduct and that an appeal against a finding of "not guilty" was outside the powers of the CHRE. After detailed analysis, the Court of Appeal ruled that the mischief against which section 29 was aimed would occur not only where a disciplinary tribunal imposed too lenient a penalty, but also where the tribunal had wrongly concluded that the conduct did not amount to serious professional misconduct.

A decision wrongly arrived at should be the subject of review. However, it is axiomatic in judicial proceedings that a court or tribunal at first instance is best placed to evaluate the primary evidence in arriving at a decision of guilt or otherwise.² Short of perversity, the circumstances likely to result in a wrong conclusion regarding culpability are limited, and include either procedural shortcomings or the emergence of fresh evidence. Law does not presume that a finding of an acquittal is at first sight inadequate and open to challenge. So why should the case against medical practitioners be different?

The drive behind this decision is public policy. Lord Phillips MR, giving judgment¹ (at paragraph 42), recognised that "to put in issue an acquittal or the adequacy of a sentence, clearly places a practitioner under the stress of having his case reopened when it would otherwise be closed. This element of double jeopardy is, however, necessarily inherent in the scheme of review under section 29. The object of that scheme is the protection of the public... We do not find it surprising that where this requirement is satisfied consideration of double jeopardy should take second place." Whether or not one agrees with this reasoning, the court of appeal has clearly indicated that public interest is paramount and over-rides considerations of the doctor's interests.

Under the GMC's reforms,³ all new cases from 1 November 2004 will be subject to a unitary test as to whether the doctor's fitness to practise is impaired to a degree that justifies action on registration. Arguably, this represents a lower threshold than the test for serious professional misconduct. Adjudication panels of the GMC will need to provide robust reasons to justify a finding of "not impaired." Such verdicts will undoubtedly be subject to minute scrutiny by the CHRE and will be open to referral, although it is hoped, as per Lord Phillips,¹ (at paragraph 41) that these powers would be used sparingly. To date five cases have been considered by the High Court,⁴ and we believe that at least a further six have been referred.

Doctors must be aware that an acquittal by the GMC is not necessarily an end to their case. It may be only the beginning of further uncertainty. We have long argued that professional regulation must achieve a reasonable and workable balance between the public interest and draconian control.⁵ Recent developments indicate that the regulation of doctors has become oppressive and regressive.

University Hospitals of Leicester NHS Trust, Leicester Royal Infirmary, Leicester LE1 5WW (ash.samanta{at}uhl-tr.nhs.uk)

De Montfort University, Leicester LE1 9BH

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Competing interests: AS is an associate member of the General Medical Council and sits on fitness to practise panels.

References

1. Dr Giuseppe Ruscillo v the Council for the Regulation of Health Care Professionals; the General Medical Council and another. Council for the Regulation of Health Care Professionals v the Nursing & Midwifery Council; Steven Truscott [ 2004] EWCA Civ 1356.
2. Ward R. Walker & Walker's English legal system. Butterworth: London. 1998: 556-7.
3. General Medical Council. The General Medical Council (Fitness to Practise) Rules Order of Council 2004. London: Stationery Office, 2004. (Statutory instrument 2004 No 2608.) www.hmso.gov.uk/si/si2004/20042608.htm (accessed 20 Dec 2004).
4. Council for Healthcare Regulatory Excellence. News archive. www.chre.org.uk/Website/news/oldnews?b_start:int=15 (accessed 19/12/04).
5. Samanta A, Samanta J. Professional regulation: fantasy, reality and legality. J R Soc Med 2004;97: 211-8.[Free Full Text]

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