General Medical Council v Donadio

When a doctor deliberately breaches specific restrictions imposed on registration, the breach must be assessed as a regulatory breach in its own right. The tribunal must address the conditionality of the doctor’s registration, the purpose of the restrictions, and their significance for public protection, public confidence and professional standards.

Sanctions guidance is indicative rather than deterministic. A tribunal may depart from it, but must give sufficient reasons, read fairly as a whole, for doing so. General reliance on proportionality or mitigation is insufficient where the tribunal’s own findings engage erasure indicators and contradict suspension indicators.

The General Medical Council appealed under section 40A of the Medical Act 1983 against a Medical Practitioners Tribunal decision suspending Dr Donadio’s registration for 12 months rather than erasing him from the register.

The Tribunal had found that Dr Donadio knowingly worked unsupervised as a consultant despite an interim order restricting him to work below consultant level under direct supervision. It also found dishonesty, serious misconduct, impairment of fitness to practise, lack of insight and a risk of repetition. The central issues were whether suspension fell within the range of sanctions open to the Tribunal and whether the Tribunal had correctly applied the GMC Sanctions Guidance.

1. Appeal allowed. The Tribunal’s sanction determination was quashed for error of principle and insufficient reasoning. The appeal was confined to sanction and proceeded on the Tribunal’s findings of fact, serious misconduct and impairment.

2. The appellate court must show appropriate diffidence towards an evaluative sanction decision, particularly where professional expertise is engaged. It may intervene where there is an error of principle, an evaluation outside the permissible range, or a serious procedural irregularity, including inadequate reasons.

3. The Sanctions Guidance is not mechanically binding. Its indicators are non-exhaustive and non-determinative. Nevertheless, the Tribunal must address the factors cumulatively indicating suspension or erasure and either impose the indicated sanction or explain sufficiently why it is departing from that guidance.

4. The Tribunal’s findings engaged several erasure indicators, including a particularly serious departure from Good Medical Practice, deliberate disregard of professional safeguards, abuse of position or trust, dishonesty and persistent lack of insight. They also contradicted relevant suspension indicators. Its general reliance on proportionality and the short period of breach did not adequately explain the departure from the Guidance.

5. Knowing regulatory non-compliance must not be reduced to a question of personal dishonesty alone. The relevant issue was that Dr Donadio practised contrary to an order which made his registration conditional on compliance with specified restrictions imposed for public protection and public confidence. He was not entitled to practise unsupervised at consultant level, and the transparency conditions were themselves designed to prevent avoidance.

6. The breach was deliberate and was aggravated by subsequent denial, lack of candour, failure to engage with the regulatory process and lack of insight. Mitigation had limited relevance where it failed to grapple with the gravity of the regulatory breach. The Tribunal’s failure expressly to assess that gravity and the conditional nature of registration constituted an error of principle and a serious irregularity.

• Medical Practitioners Tribunal: On 26 February 2020, found serious misconduct and current impairment of fitness to practise, and imposed 12 months’ suspension rather than erasure.
• High Court (Administrative Court): Allowed the GMC’s appeal and quashed the Tribunal’s sanction determination.