Gosalakkal v General Medical Council

An appeal from a Fitness to Practise Panel is a rehearing, but the court must respect the expertise of a specialist professional tribunal and its assessment of evidence. A panel may find serious professional misconduct where conduct outside ordinary clinical practice has a sufficient link with the medical profession. Repeated conduct is not invariably required. A doctor responsible for a clinical protocol may be accountable for systemic risks created by inadequate directions, even where the employing organisation also bears responsibility. Impairment may be established where the doctor lacks insight and has not demonstrated that misconduct will not recur. Sanctions should be proportionate and directed to protection of the public and confidence in the profession.

The appellant, a consultant paediatric neurologist, appealed under Medical Act 1983 s 40 against a Fitness to Practise Panel decision suspending his registration for six months. The Panel had found serious misconduct in two matters: responsibility for an inadequate video-telemetry protocol and an email to a patient’s parents involving them in his dispute with the employing NHS Trust. It also found his fitness to practise impaired and imposed suspension. The appeal challenged the Panel’s findings of misconduct, impairment and the proportionality of the sanction, together with alleged procedural irregularity and inadequate reasons.

1. The appeal was dismissed. The Panel’s findings and six-month suspension were upheld.

2. Under Medical Act 1983 s 40 and CPR 52.11, the appeal was by way of rehearing and could succeed if the Panel’s decision was wrong or unjust because of serious procedural or other irregularity. The court nevertheless had to give appropriate weight to the Panel’s specialist expertise, its opportunity to hear witnesses and its professional value judgments.

3. The safe-telemetry charge properly encompassed continuous monitoring. The issue had been raised in the expert evidence and addressed in the appellant’s evidence and submissions. The appellant, as lead clinician and author of the protocol, was responsible for ensuring that it required adequate monitoring and stated that telemetry should not proceed if monitoring was unavailable. The protocol was therefore not fit for purpose, and there was sufficient evidence for the finding of serious misconduct. It was unnecessary to prove that inadequate staffing caused Patient D’s death.

4. The lack of consensus about staffing ratios did not prevent a finding of serious misconduct. The material deficiency concerned the absence of provision for continuous monitoring, not a particular staff ratio. The guidance in David v GMC did not apply because continuous monitoring was not an issue on which there were genuine conflicting professional views.

5. Conduct outside the course of professional practice may constitute serious misconduct where it has a link with the medical profession. The unsolicited email to a patient’s parent concerned the appellant’s professional dispute and risked distress and damage to public confidence. Repeated conduct was not a universal prerequisite. The authorities concerning serious deficient performance and persistent discourtesy did not establish such a requirement.

6. The Panel was entitled to find impairment. The appellant’s failure to appreciate the gravity of the telemetry deficiencies, his lack of apology and his attempts to justify or deflect responsibility for the email justified concern about insight and recurrence.

7. The sanction was proportionate. The Panel properly proceeded from the least restrictive option, rejected no action and conditions because of the lack of insight, and imposed suspension to protect patients, maintain professional standards and preserve public confidence.

• High Court (Administrative Court): appeal under s 40 of the Medical Act 1983 against the Fitness to Practise Panel’s decision of 25 July 2014. Appeal dismissed and the six-month suspension upheld.