Professional Standard Agency for Health and Social Care v General Medical Council  EWHC 1903 (Admin)
The appellant authority appealed against a decision of the GMC's fitness to practise panel (the panel), that a psychiatrist (N) had been found not guilty of misconduct.
N had an online blog on which users would pose questions and he would answer. One user made a complaint about the advice N had given and the GMC conducted an investigation into N's conduct. N subsequently added a disclaimer on the website stating that any advice or opinion provided by him should not be taken as medical or psychiatric service. The GMC alleged that N was guilty of misconduct and his fitness to practise was impaired. Although the panel made findings in respect of N having failed to recommend a number of users see a doctor or psychiatrist or attend counselling, the panel concluded that the blog did not amount to medical practice. Further, there was no guidance produced by the GMC as to online practice.
The appellant appealed on the basis that the panel's decision was unduly lenient. Their appeal was supported by the GMC who supported a request that the court substitute a finding of misconduct in respect of N.
The appellant argued that the panel had taken a narrow approach to the case in considering whether the blog amounted to medical practice rather than considering the conduct in the wider realm of professional practice. In addition, the appellant argued that the panel had failed to take into account the expectation of users. N submitted that the appeal raised the issue of double jeopardy.
The fact that the appellant was allowed to appeal a decision of the GMC meant there was a natural element of double jeopardy. It was held however, there was not unlawful double jeopardy in this instance. In relation to the issue of the panel having taken too narrow approach, the court agreed. It was held that the panel should have considered the wider realm of professional practice and taken into account that just because N's actions did not arise from conventional clinical practice, did not mean his actions were not executed as part of his medical calling. The panel's approach meant that anyone not engaged in conventional practice would fall outside the scope of misconduct. Additionally, the panel had failed to consider that although the majority of users would accept that this was not the usual doctor/patient relationship and that there were limitations to the advice being given, some users might not. The subsequent disclaimer added to the blog by N spoke volumes of this. The panel had also failed to consider in their reasons, why they believed there was no failure by N to comply with GMC guidance.
The absence of a clear statement on the blog explaining the limitation of answering user's questions was sufficient to reach the threshold for misconduct. A finding of misconduct was substituted in respect of the allegations found proved and the question of impairment remitted to a fresh panel.