Schodlok v The General Medical Council

Where a fitness to practise panel relies on findings labelled non-serious misconduct when deciding impairment, those findings form part of the appealable decision under section 40 of the Medical Act 1983. A panel cannot treat uncharged allegations of a general behavioural problem, or a small number of individually non-serious findings, as serious misconduct by accumulation in the ordinary case.

Appellate deference to a specialist panel does not preserve factual findings for which there was no evidence on the particular charge, or which disregard material conflicting expert evidence. A conditional-registration sanction founded on such findings must be quashed and the remaining non-serious allegations remitted for lawful reconsideration.

A Fitness to Practise Panel found that Dr Schodlok had committed four instances of serious misconduct and six instances of misconduct which it described as non-serious. It found her fitness to practise impaired and imposed conditional registration for 12 months.

The Administrative Court dismissed her statutory appeal. On a further appeal, the Court of Appeal considered whether the Panel had relied on the non-serious findings when deciding impairment, whether the four serious findings were sustainable on the evidence, and whether the resulting sanction could stand.

1. Appeal allowed. The court quashed the direction for conditional registration and remitted the remaining non-serious allegations to the Fitness to Practise Panel.

2. A statutory appeal under section 40(1)(a) of the Medical Act 1983, although formally directed to a sanction, permits challenge to factual findings that led to impairment and sanction. The High Court was therefore wrong to exclude the non-serious findings from the appeal if the Panel had relied on them.

3. On a fair reading of the decision, the Panel had relied on a pattern of behaviour towards colleagues and subordinate staff. That pattern included findings described as non-serious and involving people other than Mr Marshall. Its finding of impairment therefore conflicted with its stated approach that only serious misconduct could found impairment.

4. Despite the substantial deference ordinarily owed to primary factual findings, reflected in [2010] EWCA Civ 407, all four serious-misconduct findings were plainly wrong. There was no evidence capable of proving the specific allegations of shouting, rudeness, or verbal aggression on the occasions charged. In relation to the calf-pain allegation, the Panel failed to address conflicting expert evidence and could not characterise Dr Schodlok’s clinical judgment as serious misconduct without a sustainable basis for doing so.

5. It was not open on these charges to use other, non-serious findings as an uncharged general behavioural allegation supporting impairment. Vos LJ left open the theoretical question whether cumulative non-serious misconduct could exceptionally amount to serious misconduct. Beatson LJ added that this could in principle occur where the doctor had clear notice and there were numerous similar findings, but neither proposition was necessary to the result.

6. The serious allegations were not remitted because the evidence did not support them. The Panel was directed to reconsider the existing non-serious allegations and could consider a warning under section 35D(3) of the Medical Act 1983.

• Court of Appeal (Civil Division): Allowed the appeal, quashed conditional registration, and remitted the remaining non-serious allegations to the Fitness to Practise Panel.
• High Court, Administrative Court: On 11 June 2013, His Honour Judge Sycamore dismissed Dr Schodlok’s appeal from the Panel.
• Fitness to Practise Panel: On 15 February 2013, found serious and non-serious misconduct, found impairment, and imposed conditional registration under the Medical Act 1983.