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

A finding of misconduct does not automatically establish current impairment of fitness to practise. The regulatory panel must separately determine whether fitness is impaired by reason of the misconduct, having regard to the practitioner’s present fitness, past conduct and likely future performance. An isolated error may not justify a finding of impairment where repetition is sufficiently unlikely and deficiencies have been remedied. The panel must explain why past misconduct establishes current impairment. A finding of misconduct must also have a sound evidential basis; professional practice that is reasonably supportable cannot be treated as misconduct merely with hindsight.

Professor Stefan Zygmunt challenged three determinations of the General Medical Council’s Fitness to Practise Panel. The Panel found that he had committed serious professional misconduct in his management and handover of a patient with a brain lesion, found his fitness to practise impaired, and imposed a two-month suspension.

The challenge concerned the finding that the patient should have remained in hospital on intravenous antibiotics, the adequacy of the misconduct findings, the separate assessment of current impairment, and the resulting sanction. The court also considered the correct threshold for a panel’s sanction decision.

1. The appeal was allowed in part. The finding that failure to direct continued inpatient treatment with intravenous antibiotics amounted to misconduct was quashed. The evidence did not establish that sending the patient home was outside reasonably supportable medical practice. The expert evidence described that course as reasonable practice, even though inpatient treatment might have been preferable with hindsight.

2. The court upheld the applicable appellate restraint. The appeal was by way of rehearing, but factual findings based on witnesses’ reliability should stand unless material error was clearly demonstrated. The court also gave special weight to the specialist Panel’s judgment on sanction: GMC v Meadow [2006] EWCA Civ 1390 and Fatani and Rashid v GMC [2007] EWCA Civ 46.

3. Impairment of fitness to practise is a separate question from misconduct. A Panel may find misconduct or deficient professional performance but conclude that current fitness to practise is not impaired. The statutory language requires impairment to be established by reason of the relevant misconduct or other specified ground.

4. In deciding current impairment, the Panel must consider the misconduct together with all relevant circumstances. Past conduct may inform present fitness, but the assessment must address current fitness and likely future behaviour or performance. Relevant public interests include patient protection, public confidence in the profession, and proper professional standards. The court adopted, with a qualification as to tense, the approach in Cohen v GMC [2008] EWHC 581 (Admin): an isolated error with a sufficiently remote prospect of repetition may not establish impairment.

5. The Panel’s reasoning was inadequate. Its guidance merely identified concerns serious enough to raise the question whether the practitioner should continue to practise and did not explain why the past misconduct showed that current fitness was impaired. That decision was quashed and the matter was remitted to the Panel, identically constituted if possible, to reconsider fitness to practise and everything thereafter. If impairment is found, the Panel must be satisfied, rather than sure, that the sanction is sufficient to protect patients and the public interest. There was no order as to costs.

• Fitness to Practise Panel: found misconduct, impairment of fitness to practise, and imposed a two-month suspension from the medical register.
• High Court (Administrative Court): quashed one misconduct finding and the impairment determination, and remitted the matter for reconsideration of fitness to practise and subsequent issues.