Regulatory practitioners will be aware of the need to consider carefully whether individually or cumulatively particulars of an allegation can properly be said to reach the threshold for a finding of misconduct. The situation can be particularly problematic where allegations are not serious in themselves but the number of them may, taken together, be perceived as sufficiently serious so as to amount to misconduct. This case is useful reading for any practitioner who is drafting allegations because it sets outs the correct approach to these issues.
In a successful appeal from the High Court, the Court of Appeal considered whether it is open to a Fitness to Practise Panel to conclude on the basis of a series of findings of non-serious misconduct that they collectively constitute serious misconduct.
Dr S, an Orthopaedic Registrar, appealed against a decision upholding a Fitness to Practise Panel’s decision that her fitness was impaired because of serious misconduct. The panel imposed nine conditions on the doctor’s registration for a period of 12 months. The decision was upheld by High Court on appeal in 2013, but was successfully challenged by Dr S in the Court of Appeal on 21 July 2015.
The GMC brought a number of charges regarding Dr S’s conduct whilst working as an Orthopaedic Registrar. The panel made four findings of serious misconduct concerning her dealings with an orthopaedic technician at her hospital. A further six findings of non-serious conduct were made regarding other colleagues.
The Court of Appeal was required to determine whether the panel had:
(i) Taken into account the incidents of non-serious conduct in its impairment decision;
(ii) Been right to find each serious misconduct charge proved; and
(iii) Been right to find the doctor’s fitness impaired.
It was held that whilst the panel accepted that only serious misconduct could give rise to a finding of impairment, they seemed to have taken into account both the serious and non-serious misconduct in determining impairment. Accordingly, the matter would need to be sent back to the panel to reconsider its findings.
Having also found that the panel were wrong to conclude that doctor’s fitness was impaired by reason of the four serious misconduct charges, the question remained as to whether it would have been open to the panel to find the necessary serious misconduct on the basis of the six non-serious misconduct charges.
The Court of Appeal held that the non-serious misconduct charges could not accumulate to a finding of serious misconduct. The decision on impairment was set aside and the non-serious allegations were remitted for reconsideration.
Vos LJ ,supported by Moore-Bick LJ, remarked however that the possibility of a series of non-serious misconduct findings taken together being regarded as serious misconduct should not be ruled out in a very unusual case on very unusual facts (para 63).
Beatson LJ added that such an approach could in principle be open to a panel provided that it was clear from either the charge brought by the GMC or the way the case was presented that any adverse findings could be so cumulated, so that the doctor was aware that that was a possibility (para 72).
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