Professional Standards Authority for Health And Social Care v The General Medical Council & Anor

An appellate court should respect a specialist disciplinary tribunal’s evaluative judgment, particularly on impairment, unless it is wrong, legally flawed, or outside the range of reasonable decisions. A finding of misconduct does not automatically establish impaired fitness to practise. Dishonesty ordinarily raises serious public-interest concerns, but the circumstances may exceptionally justify no finding of impairment. The position is different where a doctor has lied to a patient in a professional context. The presumption that some action should be taken in dishonesty cases applies at the tribunal stage. A warning may therefore be necessary to maintain public confidence and professional standards even where fitness to practise is not impaired. In this case, the tribunal’s decision not to issue any sanction was legally unsustainable.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against decisions of a Medical Practitioners Tribunal. The Tribunal found that the respondent doctor had dishonestly misrepresented to a former patient what he had known about a misplaced spinal screw, but concluded that his fitness to practise was not impaired and that no warning was necessary.

The appeal challenged the Tribunal’s approach to impairment, the application of the guidance on warnings, the weight given to mitigation, and the adequacy of its reasons. The central issues were whether the Tribunal’s decision on impairment was one with which the appellate court could interfere and whether the absence of any sanction was sufficient for the protection of the public.

1. Appeal partly allowed. The Court upheld the Tribunal’s conclusion that the respondent’s fitness to practise was not impaired, but quashed the decision not to issue a warning. The Court would receive submissions on the terms of the warning.
2. An appeal under section 29 is governed by the ordinary appellate standard. The Court must make a secondary judgment and accord appropriate respect to the specialist tribunal. It may intervene where the decision is wrong, affected by material error of law or serious procedural irregularity, or is an evaluative conclusion outside the bounds of reasonable decision-making. Greater caution is required in disturbing primary factual findings and multi-factorial assessments.
3. A finding of misconduct, including dishonesty, does not automatically establish impairment. Impairment is a separate and discrete assessment. Dishonesty will ordinarily impair fitness to practise, but an exceptional case may exist where the conduct was isolated, unlikely to recur, and the wider public-interest considerations do not require a finding of impairment.
4. The Tribunal had adequately addressed public confidence, professional standards, Good Medical Practice, the context of the dishonesty, remediation, and the low risk of repetition. Its conclusion on impairment was finely balanced but not irrational or outside the range of decisions reasonably open to it.
5. The Tribunal erred in treating the dishonesty presumption in the GMC’s warnings guidance as confined to the investigation stage. The presumption also applies when the Tribunal decides whether to issue a warning. It is capable of displacement, but it means that some action should follow unless the circumstances justify a different conclusion.
6. A warning serves both as a deterrent to the practitioner and to mark conduct which is unacceptable to the profession and public. Mitigation may be considered, but it carries less weight where public confidence and professional standards are engaged. Lying to a patient about the treatment provided, particularly in the context of a potential negligence claim and regulatory complaint, required a warning. The Tribunal’s conclusion that no sanction was necessary or proportionate was one no properly directed tribunal could reach.

• Medical Practitioners Tribunal: found misconduct by dishonesty, but concluded that fitness to practise was not impaired and that no warning was necessary.
• High Court (Administrative Court): upheld the finding of no impairment but allowed the appeal concerning the warning and reserved submissions on its terms.