Aga v General Medical Council

Whether conduct amounts to medical misconduct is principally a matter for the Fitness to Practise Panel’s judgment. On judicial review, the question is whether applying that description was irrational. Mere negligence is insufficient. A single omission may amount to misconduct only where it is particularly grave. The court must respect the Panel’s specialist expertise, but deference does not prevent intervention where the conclusion lacks a rational evidential basis. A brief failure to identify a diagnosis, followed promptly by appropriate investigation and treatment, will not ordinarily constitute misconduct where the incident is isolated, causes no harm, and does not involve a particularly grave act or omission.

Dr Rakesh Aga, a consultant gastroenterologist, challenged a General Medical Council Fitness to Practise Panel decision characterising his failure to recognise hypoglycaemia in an unconscious patient as misconduct. The Panel nevertheless found that his fitness to practise was not impaired and imposed no warning or sanction, so no statutory appeal under section 40 of the Medical Act 1983 was available.

The judicial review concerned whether the Panel had acted irrationally in treating the admitted failure to recognise hypoglycaemia, and failure to note recurrent low blood glucose in the notes, as misconduct. The material period was the five minutes between the claimant’s arrival at the bedside and the diagnosis and treatment of hypoglycaemia.

1. The claim succeeded. The Panel’s decision that the claimant’s conduct amounted to misconduct was quashed.
2. The statutory concept of misconduct under section 35C(2)(a) of the Medical Act 1983 has no precise judicial definition. The Panel must exercise its skilled judgment on the facts and evidence. The court must pay substantial respect to that judgment and must not substitute its own assessment of medical practice.
3. The guidance summarised in Calhaem v GMC [2007] EWHC 2601 (Admin) was helpful. Mere negligence does not constitute misconduct, although particularly serious negligence may do so. A single negligent act or omission is less likely to cross the threshold and must be particularly grave if it is to do so. Deficient professional performance under section 35C(2)(b) is conceptually distinct.
4. The court also took account of the observations in Roylance v GMC (No 2) [2000] 1 AC 311, Meadow v GMC [2007] QB 462 and Mallon v GMC 2007 SC 426, emphasising the breadth of possible professional misconduct and the need to avoid an artificial definition.
5. On the facts, the claimant had not been told of the patient’s readmission or recurrent hypoglycaemia until 11.30am. He promptly investigated the patient, reached the bedside at about 11.40am, ordered testing through a sliding scale, and had treatment implemented by 11.45am. The patient recovered and suffered no harm. The failure was isolated and momentary, and delegation of the notes review to a junior doctor was permissible in the circumstances.
6. Although the claimant could have identified hypoglycaemia a few minutes earlier, the omission was not particularly grave and there was no rational basis for characterising it as misconduct.

Permission to apply for judicial review was granted by Lindblom J on 17 May 2011. The Administrative Court subsequently quashed the GMC Panel’s misconduct finding.