Campbell, R (on the application of) v Birkin

In determining whether professional misconduct is serious professional misconduct, a professional disciplinary tribunal must consider the seriousness of the conduct together with all other relevant circumstances, including mitigation, before reaching a global conclusion. A separate, formal assessment of seriousness is not invariably required. The tribunal must provide a general explanation sufficient to show why it reached its conclusion; elaborate reasons are usually unnecessary. On judicial review, the court must assess legality and rationality rather than substitute its own view. Descriptions such as isolated incidents or relative medical isolation may be permissible where supported by the evidence and context.

The claimant sought judicial review of the Professional Conduct Committee of the General Medical Council’s decision that Dr Nigel Birkin was not guilty of serious professional misconduct. The Committee had found numerous serious failures in his treatment of two children, Michael Boyle and Amy Tasker, but considered those failures against his otherwise unblemished professional record, favourable testimonials and the relative medical isolation of his practice. The claimant did not challenge the factual findings. She alleged that the Committee failed to assess the seriousness of the misconduct, acted irrationally in describing the cases as isolated incidents and irrationally relied on medical isolation.

Permission had been granted by Beatson J. The central issues were whether the Committee had applied the correct approach to seriousness and relevant circumstances, whether its reasons were adequate, and whether its conclusions were irrational.

1. The application was dismissed. The court’s task was confined to traditional judicial review grounds. It was not to decide whether it agreed with the Committee’s conclusion on the merits.
2. Under Medical Act 1983, section 36, the Committee had jurisdiction over a fully registered person and power to impose the prescribed penalties where serious professional misconduct was found. Misconduct includes conduct falling short of the standards proper in the circumstances. The statutory qualification “serious” requires more than professional misconduct. Moral turpitude is unnecessary, and gross professional negligence may suffice where it exceeds negligence attracting only civil liability. A single incident may amount to serious professional misconduct.
3. The Committee had correctly treated seriousness as a separate issue after finding professional misconduct. Following Silver v General Medical Council [2003] UKPC 33, all relevant circumstances, including mitigating factors, had to be considered before the final finding. The Committee was not required to assess the seriousness of the failures in isolation. Its findings that the conduct was capable of constituting serious professional misconduct, together with its detailed criticisms, showed that seriousness had been treated as an important factor in the overall assessment.
4. The Committee’s reasons were adequate. A disciplinary tribunal need not give elaborate or lengthy reasons. A general explanation in broad terms will ordinarily suffice, provided the basis of the decision is apparent. The Committee identified the serious failings, considered the doctor’s record and testimonials, and explained why the charge was not made out. The court should not construe such reasons in a pedantic or nit-picking manner.
5. The descriptions of the two cases as “isolated incidents” and the practice as having “relative medical isolation” were inept or capable of improvement, but they were not irrational. The evidence supported the view that the misconduct was exceptional against a long and otherwise favourable professional record, and that the location created particular professional pressures. The Committee was entitled to take those matters into account.
6. The application was dismissed. Costs were ordered in favour of the GMC, subject to the usual protection applicable to a legally aided claimant. Any application by the interested party for costs was left to written submissions.

First-instance judicial review proceedings. Permission to bring the claim had been granted by Beatson J. The application was dismissed by Silber J.