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

Under section 35C of the Medical Act 1983, ordinary negligence does not amount to misconduct. Particularly serious negligence may do so, and a series of serious mistakes may cross that threshold when considered cumulatively. Deficient professional performance is conceptually distinct. It ordinarily requires an unacceptably low standard demonstrated by a fair sample of work, and a single episode will support that finding only in exceptional circumstances. An appellate court must respect the specialist tribunal’s expertise and factual assessments, while exercising its appellate jurisdiction. Where impairment is upheld on a narrower basis, the sanction must be reconsidered. A finding of impairment through misconduct may itself be sufficient sanction in an appropriate case.

A consultant anaesthetist appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel determination. The Panel found that his treatment of one patient involved misconduct and deficient professional performance, and suspended his registration for three months.

The appeal challenged factual findings, the conclusions on impairment, and the sanction. The central issues were whether the admitted and proved failings amounted to misconduct or deficient professional performance, and whether the suspension was proportionate.

1. Appeal allowed in part. The factual challenge failed. The Panel was entitled to regard the individual breaches as serious professional shortcomings. However, each breach, viewed in isolation, did not itself amount to misconduct.
2. Misconduct under section 35C(2)(a) of the Medical Act 1983 requires more than ordinary negligence. A single negligent act may amount to misconduct if particularly grave, but the cumulative effect of several serious mistakes may also establish misconduct. The successive failures over approximately five hours, taken together, readily crossed that threshold. The finding of impairment by reason of misconduct was therefore upheld.
3. Deficient professional performance under section 35C(2)(b) is conceptually separate from both negligence and misconduct. It normally requires an unacceptably low standard demonstrated by a fair sample of professional work. A finding based on one episode is possible only rarely and in exceptional circumstances. The Panel had not applied that limitation, and its finding of impairment on this ground was quashed.
4. The error concerning deficient professional performance did not undermine the separately valid misconduct finding. The Panel had received and applied the correct legal test for misconduct.
5. Because impairment rested on a narrower basis, the three-month suspension and accompanying conditions could not stand. In the circumstances, the finding of impairment by reason of misconduct was sufficient sanction. The suspension was quashed. The GMC was ordered to pay one quarter of the claimant’s costs, summarily assessed at £3,725.

The claimant appealed to the Administrative Court under section 40 of the Medical Act 1983 against the Fitness to Practise Panel’s determination. The Panel had found impairment by reason of misconduct and deficient professional performance and imposed a three-month suspension.

The Administrative Court upheld the misconduct finding, quashed the deficient professional performance finding, quashed the suspension, and substituted the finding of impairment as a sufficient sanction.