Council for the Regulation of Healthcare Professionals v General Medical Council & Anor

On a reference under section 29 of the National Health Service and Health Care Professionals Act 2002, the court must determine whether the disciplinary decision was unduly lenient. The CPR cannot replace that statutory test with the ordinary appeal question whether the decision was simply wrong. An unduly lenient decision may concern an acquittal, a finding, or a penalty. The court may substitute the proper outcome or remit the matter, according to whether one outcome is possible. A sanction must protect the public, maintain confidence in the profession and uphold proper standards; its punitive effect is not its purpose. In disciplinary cases involving serious professional misconduct, substantial mitigation may justify avoiding erasure, but the sanction must still mark the seriousness of the misconduct.

The Council for the Regulation of Healthcare Professionals referred a decision of the General Medical Council’s Professional Conduct Committee concerning Dr Anthony Leeper. Dr Leeper had admitted a prolonged emotional and sexual relationship with a vulnerable patient and serious professional misconduct. The Committee imposed two years’ conditions on his registration, rejecting erasure and suspension as disproportionate or punitive.

The Council argued that the court’s jurisdiction was an ordinary appeal under CPR 52.11(3), requiring the court to decide whether the Committee’s decision was wrong. The respondents supported the approach that the Council and court had to establish undue lenience under section 29(4) of the National Health Service and Health Care Professionals Act 2002. The issues included the construction of section 29 and whether the sanction imposed was unduly lenient.

1. Statutory test. The reference was treated as an appeal under section 29(7), but CPR 52.11(3) had to be read consistently with the primary legislation. The court could vary the decision only if satisfied that it was unduly lenient. The statutory test applied to the court as well as to the Council.
2. Construction of section 29. Section 29(4)(a) covered the possible outcomes of disciplinary proceedings, including an acquittal, an unduly lenient finding, or an inadequate penalty. Section 29(2)(a) and (b) applied where disciplinary proceedings had not been brought. This construction avoided the anomalies created by the section’s wording and fulfilled its public-protection purpose.
3. Remedy. Where a greater penalty was required but the precise sanction involved judgment, remittal was ordinarily appropriate. Substitution was suitable where only one outcome was possible. The court could also decline to impose a further sanction where, despite undue lenience, further action was not in the public interest.
4. Present case. The Committee was entitled to conclude that conditions could remove any danger to the public and that erasure was unnecessary. However, its rejection of suspension because it was punitive failed to consider the need to mark the seriousness of the misconduct and send an appropriate signal to the profession and public. A sanction below suspension would have been unduly lenient. The court therefore remitted the case with directions that the decision to impose conditions be recorded as unduly lenient and that the Committee should have suspended Dr Leeper, but directed that no further action be taken.

The judgment does not state a prior appellate decision in this dispute. It concerned a statutory reference treated as an appeal under section 29(7) of the National Health Service and Health Care Professionals Act 2002.