Cohen v General Medical Council

A finding of professional misconduct does not automatically establish impaired fitness to practise. At the impairment stage, a disciplinary panel must assess the misconduct in the light of all relevant factors and the public interest, including protection of patients, public confidence and professional standards.

The remediability of the misconduct, steps taken to remedy it and the likelihood of repetition are highly relevant. A panel must give cogent reasons if it rejects material expert evidence on those matters. The factual stage remains confined to the allegations charged; a wider assessment of uncharged aspects of professional performance would improperly conflate the distinct stages of the process.

Dr Ronald Cohen, a consultant anaesthetist, appealed against decisions of the General Medical Council Fitness to Practise Panel. The Panel found that shortcomings in his pre-operative and post-operative assessment of a high-risk patient, and in his record keeping, were inappropriate, unprofessional and significantly below the expected standard.

The Panel then found his fitness to practise impaired and imposed conditions on his registration. Dr Cohen accepted most of the factual failings, but challenged the finding of impairment and the conditions. The central issue was whether the Panel had treated the factual finding of misconduct as automatically establishing impairment, without properly considering remediability and the risk of repetition.

1. The appeal was allowed in part. The challenge to the Panel’s factual finding that the practitioner’s conduct fell significantly below the required standard was dismissed. The findings of impaired fitness to practise and the resulting conditions were set aside. A warning was substituted.

2. Under the three-stage procedure in Rule 17, the first stage concerns whether the charged facts are proved. It must be confined to the allegations in the heads of charge. A panel would improperly conflate the stages if it assessed other aspects of the practitioner’s performance at that point.

3. The second stage is a separate inquiry. Under Medical Act 1983, misconduct does not automatically establish impaired fitness to practise. The Panel must consider the misconduct alongside all relevant circumstances and the public interest in patient protection, public confidence and the maintenance of proper standards.

4. The ease with which misconduct can be remedied, whether it has in fact been remedied, and the likelihood of recurrence are highly relevant to impairment. The Panel erred by apparently treating the factual findings as determinative and by considering remediability only when selecting a sanction.

5. The Panel was also required to give cogent reasons for rejecting the independent expert’s material opinion that the shortcomings were remediable and did not justify calling the practitioner’s registration into question. It gave no adequate reasons.

6. The admitted failings were serious, but had been remedied and were exceptional lapses in an otherwise long career. The court therefore held that fitness to practise should not have been regarded as impaired. Pursuant to section 35D(3), a warning was the appropriate disposal.

• High Court (Administrative Court): Allowed the appeal against the General Medical Council Fitness to Practise Panel’s impairment and conditions decisions, while dismissing the appeal against its factual findings.
• General Medical Council Fitness to Practise Panel: On 4 November 2006, found the practitioner’s fitness to practise impaired and imposed conditions on registration.