GMC may not be entitled to conclude that assault occurred

BMJ 1995; 310 doi: https://doi.org/10.1136/bmj.310.6984.936 (Published 08 April 1995) Cite this as: BMJ 1995;310:936
  1. J K Mason,
  2. R A McCall Smith
  1. Professor emeritus of forensic medicine Reader in law Faculty of Law, University of Edinburgh, Edinburgh EH8 9YL

    EDITOR,—The finding by the General Medical Council's professional conduct committee that the anaesthetist in the case discussed by John Mitchell and others was guilty of serious professional misconduct raises serious issues.1 The merits or otherwise of the finding are one thing; more serious is the fact that the committee seemed to conclude that, in inserting a suppository without specific consent, the doctor assaulted his patient. This is a grave conclusion and arguably one that the committee is not entitled to reach.

    Assault is either a criminal offence or a civil wrong. In either case it is a technical legal matter, and a person cannot be said to have assaulted another unless the specific legal requirements of assault are present. If in saying “and thus assaulted her” the committee is suggesting that the criminal offence of assault was committed then one must ask what right it has to reach this conclusion. Was the doctor convicted by a court of the criminal offence of assault? If not, did the committee take on itself the task of determining whether this criminal offence was committed? It is difficult to imagine a doctor who performed a recognised medical procedure in good faith being convicted of assaulting his or her patient, given the definition of broad consent provided in the case of Chatterton v Gerson.2 In the current case an important question must be whether the committee based its decision on a conclusion of assault, which we suggest it might not have been entitled to do.

    Is the determination of criminal guilt or innocence within the powers of the General Medical Council, or is the council, perhaps unintentionally, arrogating to itself a power that the statute does not provide? In the absence of any right to appeal this could possibly be a matter for judicial review, and we suggest that the BMA, as a party with standing, might pursue the point.


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