Walker-Smith v General Medical Council

The distinction between medical practice and research depends on purpose as well as objective circumstances. A practitioner’s intention is an essential factor, although it is not necessarily decisive. A fitness to practise tribunal must determine that issue and explain its reasoning, including whether the practitioner acted honestly. Where clinical appropriateness is disputed, the Bolam test applies. The tribunal must address conflicting expert evidence and cannot reject a responsible body of medical opinion without finding that it falls outside the range of reasonable professional opinion. Findings based on inadequate reasoning, material errors, or failure to address central evidence cannot support serious professional misconduct or erasure from the register.

The appellant, Professor John Walker-Smith, appealed against findings of serious professional misconduct made by a General Medical Council Fitness to Practise Panel. The panel concluded that investigations of children with autism and gastrointestinal symptoms formed part of an unapproved research project, that several investigations were not clinically indicated, and that the appellant had acted contrary to the children’s clinical interests. It also made findings concerning the accuracy of a Lancet paper and the use of Transfer Factor. The central issues were whether the investigations constituted research or clinical practice, whether the procedures were clinically justified, and whether the panel had adequately reasoned its conclusions.

1. Appeal allowed. The panel’s determination and the order erasing the appellant’s name from the medical register were quashed. The GMC did not seek remission to a fresh panel.
2. The fundamental distinction between medical practice and research is that medical practice aims to benefit the individual patient, whereas research aims primarily to advance general knowledge. In applying the Royal College of Physicians guidance, the panel was required to consider the practitioner’s intention or purpose. A purely objective test was not a reasonable interpretation of that guidance.
3. The panel had to decide what the appellant intended to do in relation to each child and whether his contemporaneous statements to the Ethics Committee and others were truthful. Its failure to make findings on those central issues, and its reliance on brief references to the medical records without analysing conflicting evidence, rendered its reasoning inadequate.
4. Under the Bolam test, the questions whether investigations were clinically indicated and whether they were contrary to the children’s clinical interests had to be assessed by reference to responsible medical opinion. Where the appellant’s experts supported the investigations, the panel could not reject that evidence without finding that the opinions fell outside the range of reasonable medical opinion. It failed to do so in several material cases.
5. The panel’s reasoning concerning the Lancet paper was also flawed. The paper did not bear the meaning attributed to it concerning routine referrals, although the finding that the statement about Ethics Committee approval was inaccurate was justified in principle. The Transfer Factor findings were internally inconsistent and unsupported by the evidence.
6. The defects were systemic and went to the root of the determination. The finding of serious professional misconduct and the sanction of erasure could not stand.

1. High Court (Administrative Court): appeal from the Fitness to Practise Panel allowed. The panel’s findings of serious professional misconduct and the sanction of erasure were quashed under [2012] EWHC 503 (Admin).