Giele v General Medical Council

Professional disciplinary sanctions are protective, not punitive. In deciding sanction, a fitness to practise panel must consider sanctions in ascending order of severity and must not begin from erasure or require exceptional circumstances before imposing a lesser sanction.

A sexual relationship with a patient is grave misconduct and an abuse of trust, particularly where the patient is vulnerable. It may merit erasure, but erasure is not automatic. The panel must assess all the circumstances, including mitigation, the practitioner’s abilities, and the public interest in retaining a competent doctor where that is compatible with maintaining public confidence and proper standards.

The appellant, a consultant plastic surgeon, appealed against a Fitness to Practise Panel decision of 19 March 2005 which erased him from the medical register. The Panel found that he had conducted a sexual relationship with a former patient for about a year and had thereby committed serious professional misconduct.

There was no finding of a continuing risk to patients. The appellant relied on extensive evidence of his exceptional clinical ability and the value of his services. The central issue was whether erasure was the appropriate and proportionate sanction, and whether the Panel had approached that question lawfully.

1. Appeal allowed. The decision to erase the appellant was quashed. A suspension for 12 months was substituted, followed by a hearing to decide whether any further action, including conditions, was needed before a return to practice.

2. Sanctions imposed by a GMC panel are not punitive. They protect patients and the public interest, which includes maintaining public confidence in the profession and upholding proper standards. Protection extends to potential patients. The public interest may also include the return of a doctor to safe work.

3. An improper sexual relationship with a patient is very serious, normally involving an abuse of trust. A doctor must resist advances generated by the doctor-patient relationship. Known vulnerability aggravates the misconduct. Nevertheless, erasure is not inevitable. It is required only where it is the only means of protecting patients or maintaining public confidence.

4. The legal assessor’s advice had caused the Panel to ask whether erasure would be unreasonable and whether exceptional circumstances justified suspension. That was erroneous. The Panel had to consider the available sanctions from the least severe upwards and decide which was appropriate on the facts. Exceptional circumstances were not a precondition to a lesser sanction.

5. The appellant’s misconduct could have justified erasure, but there was no risk of repetition or danger to patients. His exceptional skill, the substantial testimonials, and the public interest in retaining his services were relevant factors. Since the Panel had misdirected itself, the court could form its own view. An informed and reasonable public would not lose confidence in the profession if the appellant received a 12-month suspension.

• High Court (Administrative Court): allowed the appeal against the sanction and substituted a 12-month suspension.
• GMC Fitness to Practise Panel: on 19 March 2005 found serious professional misconduct arising from a sexual relationship with a patient and directed erasure from the register.