Campbell, R (on the application of) v General Medical Council

A professional conduct committee must determine culpability separately from sanction. Evidence concerning the circumstances in which misconduct occurred may bear on whether it was serious, but evidence relevant only to personal mitigation cannot reduce otherwise serious professional misconduct to a lesser form of misconduct.

An unblemished career and favourable testimonials will almost invariably concern sanction rather than culpability. Only after deciding whether serious professional misconduct is established should the committee determine the appropriate sanction.

A General Medical Council committee found that a consultant paediatrician’s treatment of two children fell below acceptable professional standards but acquitted him of serious professional misconduct. In reaching that decision, it relied on his long unblemished career and favourable testimonials.

Silber J refused the complainant’s application for judicial review, holding that the committee had given sufficient reasons. On appeal, the complainant additionally argued that the committee had misdirected itself by following Silver v General Medical Council and treating personal mitigation as relevant to culpability.

The central issues were whether culpability and personal mitigation had to be determined separately, whether the committee’s reasons were sufficient, and what remedy should follow from any error.

1. Appeal allowed. The committee erred in law by taking the practitioner’s unblemished medical practice and personal testimonials into account when deciding whether he was guilty of serious professional misconduct. Those matters were relevant only to sanction.

2. Rules 28 and 29 of the Professional Conduct Committee (Procedure) Rules 1998 require the culpability question and personal mitigation to be determined separately and sequentially. The same evidence may sometimes be relevant to both questions. Circumstances surrounding the misconduct may affect its seriousness, while evidence concerning personal character or an otherwise unblemished career will ordinarily concern sanction.

3. The decisions in Rao v General Medical Council and Silver v General Medical Council rested on a misreading of Preiss v General Dental Council. The passage concerning an otherwise unblemished record in Preiss recorded counsel’s submission in the context of penalty. It did not establish that personal mitigation was relevant to culpability. To the extent that Rao and Silver decided otherwise, they were wrong.

4. A committee may consider the circumstances in which the practitioner committed the misconduct, but must remain alert to whether those circumstances truly bear on culpability or only on penalty. The number and strength of testimonials will almost invariably be irrelevant when deciding whether professional misconduct was serious. Personal mitigation must not be used to downgrade conduct which would otherwise amount to serious professional misconduct.

5. The original challenge based on insufficiency of reasons failed. Although the committee’s reasons were terse, its specific factual findings and stated reliance on the practitioner’s career, testimonials and responsibilities sufficiently explained its conclusion.

6. The court declined to quash the decision or remit the case. A remedy must be case-specific. The elapsed time, the practitioner’s lack of responsibility for the legal error, the exposure to a second disciplinary determination, and the absence of practical benefit from rehearing made declaratory relief sufficient. The court declared that the committee had erred by considering personal mitigation when determining culpability.

1. Court of Appeal (Civil Division): Allowed the appeal from Silber J’s order, held that the committee’s decision was legally flawed, and granted declaratory relief without quashing or remitting the disciplinary decision: [2005] EWCA Civ 250.
2. Administrative Court: Silber J refused the application for judicial review on 28 May 2004, holding that the committee had complied with its obligation to give reasons. No citation is stated in the judgment.
3. General Medical Council Professional Conduct Committee: On 2 October 2003, found substandard treatment but dismissed the charge of serious professional misconduct.