Holton v General Medical Council

In assessing seriously deficient professional performance, the relevant standard is the standard reasonably expected of the practitioner in the post and specialty in which the practitioner actually works. A deficiency confined to a significant part of the practitioner’s work may suffice. Personal factors such as training, education and personality do not reduce the standard, but external factors such as workload, lack of resources and professional isolation may be relevant. Performance before the commencement of the statutory regime may be considered where the provision is regulatory and protective rather than penal. Following a finding of serious deficiency, the panel must suspend registration or impose conditions. Any conditions must address the deficiencies found, protect the public or remedy those deficiencies, and remain proportionate.

Dr Andrew Holton appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel determination that his professional performance had been seriously deficient. The Panel imposed conditions on his registration for three years.

The appeal concerned the correct professional standard, the relevance of training, workload and resources, whether pre-1 July 1997 conduct could be considered, the weight to be given to lay complainants’ evidence, the Panel’s power to depart from the Assessors’ conclusions, and the proportionality of the conditions.

1. Appeal against the finding. The appeal against the finding of seriously deficient professional performance was dismissed.
2. Applicable standard. The standard is that reasonably expected of the practitioner in the post and specialty in which the practitioner actually works. A doctor may be judged by the standard applicable to work outside the doctor’s formal specialty where that work is undertaken. Deficiency in a significant part of the doctor’s work may establish seriously deficient professional performance.
3. Relevant circumstances. Training, education and personality are personal factors and are irrelevant to whether performance is deficient. External circumstances, including pressure of work, inadequate resources and professional isolation caused by absence of colleagues, may be relevant because performance must be assessed against what a competent practitioner could reasonably achieve in those circumstances. Isolation attributable to the doctor’s personality or behaviour is not relevant.
4. Retrospectivity. Section 36A of the Medical Act 1983 permits a panel to consider professional performance before 1 July 1997. The provision is regulatory and directed primarily to public protection, not punishment. Krippendorf v GMC and Sadler v GMC did not require a contrary result because the point had not been argued in those cases. Any unfairness arising from the parties’ assumption that earlier conduct was only background was absent on the facts.
5. Evidence and Assessors. Paragraph 10 of Schedule 3 to the Performance Rules gives complainants a right to give evidence and address the Panel. The Panel may reject such evidence if unreliable, but must give it appropriate weight. The decision is that of the Panel. It must take the Assessors’ findings into account, but is not bound by them and may reach its own conclusions, particularly where the Assessors applied an incorrect basis.
6. Conditions. Section 36A(1) requires a Panel finding serious deficiency to be followed by suspension or conditional registration. Conditions must relate to the deficiencies found, be necessary for public protection or remediation, and be proportionate. Condition 1 was excessive because the deficiencies concerned paediatric work, whereas Dr Holton was retraining in neurophysiology. It was replaced by a condition confining practice to work as a Specialist Registrar or Consultant in Neurophysiology. Condition 2 was replaced with a condition concerning satisfactory clinical and academic progress reviews. The remaining conditions continued with the relevant regional reference amended.

The appeal was brought to the High Court (Administrative Court) under section 40 of the Medical Act 1983 from the Fitness to Practise Panel’s determination of 26 January 2006.