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

On a statutory appeal alleging undue leniency in professional discipline, the court may intervene only where the sanction was one which a disciplinary tribunal could not reasonably have imposed. The sanction must protect the public and maintain confidence in, and the reputation of, the profession.

Tribunal expertise receives weight according to the nature of the misconduct and the adequacy of its process. Medical testimonials may carry substantial weight where retaining a competent doctor serves the public interest without exposing others to danger. Lack of remorse is relevant insofar as it demonstrates deficient insight or a risk of repetition; it cannot justify additional punishment. Conditions must nevertheless be sufficiently precise and reviewable to secure effective protection.

The Council appealed under section 29(4) of the National Health Service Reform and Health Care Professions Act 2002 against a Professional Conduct Committee decision concerning Professor David Southall. The Committee had found serious professional misconduct arising from his presentation, as near certainty, of grave child-abuse allegations based on limited information. It prohibited him from undertaking child-protection work for three years.

The Council contended that the sanction was unduly lenient and that erasure was required. The issues were whether conditional registration reasonably protected the public and the profession, and whether the condition was sufficiently comprehensive and capable of review.

1. The appeal was allowed in part. Conditional registration, rather than erasure, was not itself unduly lenient. The Professional Conduct Committee had, however, shown undue leniency by framing the condition insufficiently tightly and failing to provide for review under rule 31(5) of the GMC etc Rules Order of Council 1988.

2. Under section 29 of the National Health Service Reform and Health Care Professions Act 2002, a sanction is unduly lenient only if, having regard to the material facts and the protective objects of professional discipline, it was one which the tribunal could not reasonably have imposed. Intervention requires a sanction which is manifestly inappropriate. The controlling interests are public safety and the reputation of the profession: Ruscillo and Truscott [2004] EWCA Civ 1356 followed.

3. The weight given to a professional tribunal's expertise depends on the circumstances. Greater weight may be appropriate where the issue concerns clinical standards or fitness to practise. The court may more readily assess for itself misconduct such as dishonesty or sexual misconduct. Respect for expertise is appropriate, but it cannot amount to greater deference than the circumstances warrant: Ghosh v General Medical Council [2001] 1 W.L.R. 1915 applied.

4. Professional sanctions protect the public, uphold proper standards and maintain confidence in the profession; they do not punish. Testimonials concerning a doctor may receive substantial weight where they demonstrate outstanding competence and show that retaining the doctor's services serves the public interest without creating danger. The position differs from cases concerning the absolute trustworthiness required of solicitors. Bolton v Law Society [1994] 1 W.L.R. 512 was applied as to the primacy of professional reputation but distinguished as to the weight of testimonials, while Bijl v General Medical Council [2002] Lloyd’s Med Rep 60 was applied.

5. Lack of remorse may evidence deficient insight, maintenance of unreasonable views or a risk of repetition. Those matters are relevant to protection, but remorse cannot be used to increase a sanction as punishment. Nor does the occurrence of factors listed in indicative guidance make erasure automatic. Erasure requires conduct fundamentally incompatible with being a doctor.

6. The Committee was entitled to find that Professor Southall could safely continue general paediatric practice. Evidence showed that an existing system preventing his involvement in child-protection work had operated successfully, and that loss of his clinical skills would harm the public interest. The condition nevertheless had to confine him to reporting suspected abuse to the appropriate child-protection doctor, without further involvement or attempted influence, and had to apply to all relevant work. A rule 31(5) intimation was also required so that continuation or variation of the condition could be considered at the end of the three-year period. The court would hear counsel on whether the matter should be remitted for the formulation of appropriate conditions.

• High Court (Administrative Court): The Council's statutory appeal was allowed to the extent that the conditions required tighter formulation and provision for review. The court rejected the contention that erasure was required.
• Professional Conduct Committee of the General Medical Council: The Committee found serious professional misconduct and imposed, for three years, a condition prohibiting Professor Southall from undertaking child-protection work within or outside the NHS.